Protection of Lawful Commerce in Arms Act

By:  Larry Craig
Date: July 28, 2005
Location: Washington, DC



Mr. CRAIG. Mr. President, we are back on this very important piece of legislation, S. 397, the Protection of Lawful Commerce in Arms Act.

Under a unanimous consent agreement entered into last evening, we are on the Kohl trigger lock amendment. I understand there is an hour equally divided, and we hope we can get to a vote on this before 12:30. This is an important amendment, which I am confident Senator Kohl will be here in a few moments to discuss.

In the short term, let me visit the broader issue of the bill itself. We now have 62 cosponsors. I am pleased Senator Conrad has joined us in support of this important piece of legislation to limit predatory and junk lawsuits from attempting to destroy the capability of the private sector to produce legal, effective firearms for our Nation's citizens and for our police and military. Unlike most nations, we are a nation that does not have a government company or a government manufacturer of firearms. It has always been the responsibility of the private sector. They have done extremely well. Innovation and creativity has always allowed the latest and best firearm capability, not only for our private citizens but for the military and police departments and the armed services that contract with these private sector companies to produce not only the firearms but the effective ammunition for them.

Some years ago, we saw a frustration growing in the gun control community that the public and the Congress collectively would not bend to their wishes. The public, in its inevitable wisdom, recognized that guns were not an issue in deaths caused by guns or in the commission of crimes, but the criminal element was the issue and that we ought to get at the business of law enforcement and taking those off the streets who used a gun in the commission of a crime. That is exactly what this administration has done in the last 5 1/2 years. The use of a firearm or criminal activities in which a firearm is used has rapidly dropped in the last

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6 years because this Justice Department has said, clearly, they will enforce the law.

The law is basically if you use a gun in the commission of a crime, you do the time. You don't get to plea bargain it away and go back to the streets to reengage as a criminal to once again misuse your rights as a citizen in a violent or criminal activity.

Because the anti-gun community didn't get it their way, they, over the years, have determined that they could use the legal system, the court system, to bypass and suggest that the third party, or the manufacturer, even though he or she was a law-abiding company and produced under the auspices of the Federal laws in responsible ways in that those products were sold through federally licensed firearms dealers, that wasn't good enough. Somehow you had to pass through and say that the crime and the fallout of crime was going to get paid for in some way by these responsible citizens who were building a legal and responsible product. That is the game--I say that--that has been played.

As a result, these legal, law-abiding manufacturers and citizens have increasingly had to pay higher and higher legal costs to defend themselves in lawsuit after lawsuit that have, in almost every instance, been denied and thrown out of court by the judges when filed largely by municipalities who, obviously frustrated by gun violence in their communities, chose this route. Instead of insisting that their communities and prosecutors and law enforcement go after the criminal element, they, in large part, in their frustration, looked for an easy way out. That has brought this legislation to the floor to limit the ability of junk or abusive kinds of lawsuits in a very narrow and defined way, but in no way--and I have said it very clearly--denying the recognition that if a gun dealer or a manufacturer acted in an illegal or irresponsible way or produced a product that was faulty and caused harm or damage, this bill would not preempt or in any way protect them or immune them from the appropriate and necessary legal sentence.

That is what we are about. I see that the sponsor of the trigger lock amendment is on the Senate floor.

Before I relinquish the floor, I ask unanimous consent to print in the RECORD a letter from the Department of Defense as to the importance of this issue, the Acting General Counsel of the Department of Defense speaking to the importance of S. 397 in safeguarding and protecting these gun manufacturers that produce a large amount of our firearms and weapons for all of our men and women who serve in harm's way in defense of our freedoms.


Mr. CRAIG. In the last few days, I have found interesting editorials in the Wall Street Journal. They get it. They understand it. They have put it very clearly as to the reality of this bill, that is not just for the protection of law-abiding citizens but recognizing that tort reform is necessary. When the Congress can't do it in sweeping ways, we have chosen targeted ways to get at the misuse of our court system in large part by the trial bar.

I ask unanimous consent to print those in the RECORD as well.


Mr. CRAIG. Mr. President, a trigger lock does not a safe weapon make. A trigger lock can lay right beside a firearm. Unless it is inserted and locked, the firearm is still accessible. You can sell a firearm. You can demand that there be a trigger lock. Yet still someone who is irresponsible in the storage and/or use of a firearm can cause that firearm, by the absence of a trigger lock or the absence of a safe storage place, to be harmful to a child. That is reality.

Sometimes we stand on the floor of the Senate and think we can fix the world by simply writing a law. I am not, by that statement, questioning the sincerity of Senator Kohl. Last year, his amendment got 70 votes in the Senate. At the same time, it is a mandate. In that mandate, have you created a safer world? I am not sure.

I do know this: I do know what creates a safer world. That is an awareness, an understanding of and an educational process of how you, in fact, create a safer world. Gun manufacturers know that. Licensed and responsible firearms dealers know that. Today, more than 90 percent of the new handguns already sold in the United States have a safety device attached to them or that comes with it that is part of the sales package.

So already, clearly, the educational process has gone forward. There are several national private organizations out there who have constantly and repetitively taught young people about the misuse of firearms. The Eddie Eagle program of the National Rifle Association educates thousands and thousands of young people each year to stay away from a firearm if they see one, to report it if they see one and, obviously, to seek an adult's knowledge about it.

Still, tragically enough, a child's curiosity in a misplaced firearm can cause accidents; it always has and, even with the passage, tragically enough, of the Kohl amendment, if it becomes law, it always will. You cannot create the perfect world. It is simply an impossibility to do. We try, and we try to at least shape that world in a way that makes it safer. But there is a reality I think all of us clearly understand. The statistics, though, while alarming if it is even one child, are dramatically improving. I think it is important to say on the record what the facts are. Unintentional firearm deaths--this is from the National Safety Council records. In 2001, there were 802 total; 15 of those 802 were under the age of 5 years; 57 were from 5 years old to 14 years old. That is that phenomenal time of curiosity among young children. No question about it, if that trigger lock was in place, a life might have been saved. I don't question that either. But then again, you have to get the adult who has the responsibility with that firearm to put the trigger lock in place. It is not automatically attached or automatically activated. It has to be humanly attached and humanly activated. There were 110 of the 802 deaths from age 15 to age 19. My guess is, unintentional, yes, by statistical fact it was. But again, that is an age when young people ought to know, ought to have been trained, ought to have had some level of education about the understanding of the safe use of a firearm. From age 20 to 24, there were 96 of the 802. Age 25 to 45, there were 268 accidental, unintentional deaths of the 802 total in 2001; and age 45 to 64--these are, without question, mature adults who clearly ought to understand and, yet, unintentional, accidental firearm deaths numbered 177. That was out of the 802 total in 2001. In 2002, it was 800. In 2003, it dropped to 700.

The point is this: From 1992 to 2003, there has been a 54-percent decline in accidental, unintentional deaths caused by firearms. Something is beginning to work out there, because gun ownership continues to go up in our country. So there is, without doubt, an educational process underway about the importance of handling a firearm appropriately and correctly, using safety devices when that firearm is in storage or nonuse, and in a way that is protecting. The 90-percent sales of trigger locks today on new weapons, new firearms, may be a contributing factor to that. That number continues to go up. So there was a 54-percent increase from 1992 to 2003 in the reduction--54 percent down--of accidental, unintentional firearms deaths. From 2001 to 2003, that figure was a 13-percent decline. Those are very important statistics.

Once again, in no way should my statement on the floor be taken as someone who doesn't care or recognize that one child's death is one too many. We will not talk about safety belts and about safety seats and about any of the other kinds of deaths of children in that 5-year-old and under age group. Those are so dramatically higher than firearms that one could argue something ought to be done about those. Clearly, some things are being done about those. If you have a child in a safety seat or not in a safety seat and it is a State law and you have a law enforcement officer out there, you can, in many instances, note that and cause the adult to be more responsible than you can in the privacy of a home, where most of our firearms are today.

My point in arguing or discussing this issue is not to suggest we ought not to be concerned, but to clearly recognize that we will not, by this, in any way create a perfect world. Safe storage devices are no substitute for common sense and a clear understanding that a firearm misuse can become, as we all know, a lethal device. A firearm irresponsibly used can become a lethal device. While I know this is a popular thing to do, the point is--and I hope it is made clear by what I have said--the world better understands today than ever before, and unintentional deaths, accidental deaths by firearms have dramatically dropped in this country, and they are continuing to drop.

Nothing replaces the responsible action of an adult in his or her exercising of their constitutional rights to provide safe storage away from that casual curiosity of a small child about the uniqueness of a mom or dad's firearm, owned and held in the homes of America.

So I am certainly going to suggest to my colleagues that they vote their will on this, but it is important we shape it in the right context. I have always appreciated working with Senator Kohl and his sincerity on these kinds of issues. I think what he suggests today, as it relates to fines, or revocation of license, or failing to sell, is an appropriate fashion to go. But again, it is a mandate that I think today's reality in the marketplace would suggest is in part an unnecessary thing to do.

I yield the floor and retain the remainder of our time.


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. CRAIG. Mr. President, over the last good number of years, law-abiding gun manufacturers in this country producing a legal product to the market, law-abiding gun dealers performing within the confines of the Federal firearms licensing process, have spent over $225 million defending themselves from the very arguments the Senator from Michigan would like to have continued.

The Senator from South Carolina has well spelled out that there is a duty and there is a responsibility. But if that duty is taken beyond your ability to know it, to understand it, to be able to act against it, then you ought not be responsible.

We have gotten ourselves into a very litigious society. So in a way it has cost our society more than almost any other society in the developed world today. Why? Because we would like to shove blame off onto someone else. When society wrongs society, it has to be somebody else's fault besides the one who perpetrated the wrong. So we have attempted to reach back through law, time and time again. As a result--we have heard it, whether it is the cost of an automobile or whether it is the cost of a firearm today or whether it is the cost of almost any consumer product--it is going to cost you more because somewhere the producers have to mount large amounts of money to pay their legal fees to fend off someone looking for an excuse to blame someone else for the action of someone who should have been responsible for themselves.

That is the essence or the underlying construction of what has brought us to the floor today. This argument will not be argued in behalf of gun manufacturers. Over the course of the next several years it will be argued in behalf of a lot of law-abiding, producing Americans who have simply grown tired and fed up with the idea that they always have to be sued although what they are doing is legal, even

though they are within the law. That is because somehow somebody used what they have made illegally, and as a result they should have known and they are responsible because surely the person who perpetrated the crime cannot be held responsible because society either produced them or the environment in which they became irresponsible was a societal responsibility.

Oh, my goodness, where do we rest the blame? I think many of our parents suggested that we were responsible for our actions and we would have to pay the price. But the argument here is quite the opposite, that someone who might have a deep pocket somewhere down the road, because what they produced is a legal product for the market which was then used in a criminal act, should pay that price. And the criminal--not suggesting they would go free, but certainly suggesting they can't afford to pay, so someone else ought to pay, and the argument goes on and on.

You have heard my arguments over the course of the last 48 hours. We are the only nation who doesn't have a government-owned weapons factory. It has always been a product of the private market. If we choose to run them out of our country, then all of the firearms our men and women in the military use, our law enforcement community uses, our law-abiding citizens own, will be made in some other country.

I do not believe that is where our country wants to go, and it is clear that is not where a majority of the Senate wants to go. I do believe the Senate, as reflected by its vote on the cloture motion to proceed and ultimately get us to this bill, is reflective of society as a whole.

I hope a majority of the Senate will oppose the Levin amendment. I do not believe you can suggest you are going to correct a problem in one instance and then open another door and allow a death by a thousand cuts, as obviously would occur here, if that case were the one we are arguing.


Mr. CRAIG. Will the Senator yield on that point?

Mr. SESSIONS. I will be pleased, I say to the Senator from Idaho.

Mr. CRAIG. Project Exile in Richmond, which the Senator referenced, in Richmond was a fascinating demonstration, as I think the Senator is pointing out. In the testimony of a person arrested for holding up a 7-Eleven--he went in with a baseball bat; this is true evidence--when he was being questioned as to why he used a bat instead of a gun in the commission of a crime, he said, Because if I use a gun in the commission of a crime, I do time in a Federal jail, just as the Senator has spoken to. So he chose the baseball bat as his weapon and not the firearm. That happened in Richmond under Project Exile.


Mr. CRAIG. Mr. President, for my fellow Senators, let me try to bring us up to speed on where we are. We now have all of the amendments filed and are looking at them and have studied a good number of them over the last hour and a half to determine how we might dispose of them. We are hoping we can put something together.

Senator Warner from Virginia is here to talk a bit more about his legislation. I see my colleague, the floor manager from the Democrat side, also here. I do want Members to know we are working to see if we cannot bring some finality to this process in a precloture environment or resolve that issue so we can complete our work on not only this but clear the issue of an energy conference which is privileged, a CAFTA recognition of the House bill versus the Senate vehicle, which is privileged, and that can come before us so that we can complete our work in a timely fashion tomorrow and not spill ourselves into Saturday, as could be the case strictly under the rules of the Senate. We hope we may be able to avoid that.

I hope that within a little while, we may be able to look at a package and offer it to our colleagues for their consideration.


Mr. CRAIG. Mr. President, reserving the right to object. Under the current environment, I will object.

I do so with this concern in mind. I don't question the sincerity of the Senator from Virginia for the offering of his amendment. I will say that it is similar to but not exactly like the Levin amendment that we have just disposed of. It deals with the issue of negligence or reckless conduct.

There are differences, and the Senator from Virginia may wish to point those out. But it is important for the Senate to know that in their similarities, the Senate rejected overwhelmingly, by the largest vote yet, the issue of negligence and reckless conduct, for it is clearly recognized now by a majority of the Senate that this would drive a major loophole through this legislation and deny the very legislation and its intent. I certainly would not want that to happen. For that purpose, I will object to laying aside the pending amendment and bringing the Warner amendment to the Senate floor at this time.


Mr. CRAIG. Mr. President, again, I don't question the sincerity or how the Senator from Virginia feels about this issue and the amendment he has offered. But I think it is important to recognize how the current law works.

It does not mean it is perfect, and it does not mean it is always effective. But the Bull's Eye arms dealership in the State of Washington, from which John Muhammad and Lee Malvo, the two snipers who terrorized Washington, Northern Virginia, and Maryland for a time, stole their firearm, had a record of repeated recordkeeping violations and, as a result of that, their license was pulled. The owner of that dealership no longer has his license.

I don't know if the Bull's Eye is still in business, but if it is, it is under a new dealer. Why? Here is the reason why. If you are a licensed firearms manufacturer in the United States--and all are under the Federal firearms licensing--whether you are a manufacturer or a licensed dealer, you must report within 48 hours missing weapons. If they have been stolen or misinventoried, they have to be reported. They have to be reported to the ATF, and they have to be reported to local law enforcement officers in the area as a possible theft, meaning that those guns are out there in the market. So there already is a Federal law and a mechanism that is at work to attempt to accomplish this.

If, by that reporting, negligence can be demonstrated, this bill does not protect in any sense of the word negligent entrustment. That is very clear.

It was argued by a variety of our colleagues earlier in the day as it related to the Levin amendment--and that is the connective thread I spoke about earlier--it is important to understand that we are not without very strict laws today as it relates to the control of inventories of firearms in federally licensed firearms dealers' business locations and manufacturers. If there is a demonstration of negligence, licenses can be pulled and those people can be taken out of business, and they are.

Of course, in the case of the DC snipers--the tragedy we all lived through here--we know the end result tragically enough--people lost their lives. One of those men will be executed and the other is now in prison for life, and the dealership, or at least the owner of that dealership at the time, is out of business and will not get another license. That is the situation.

It appeared at least that they made mistakes in their recordkeeping. As a result of that, they lost their license. If that is the case--I cannot argue, I am not an attorney--that is a clear case of negligent entrustment, but it appears it may have been--if that is the case, I am quite sure that prosecution will move forward.

If it is not, so on. Now, in the case of the West Virginia incident that we all know well, the lemon jello case, a straw dealer or a straw purchaser, the firearms dealer was wise to it, and as a result reported it. So I think it is important to suggest that the law is out there and the law is clear and the ATF enforces the law. The law says firearms stolen, report it; inventory off, report it; 48 or you run the risk of losing your license and being put out of business, manufacturer or dealer.

So I do not want any of our colleagues to assume that this is an open area of the law. It is not. By the level of enforcement that the Federal Government and the Justice Department can deliver, it is a clearly enforceable and an enforced section of firearms law in this country. I think that is important for the record to demonstrate.


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