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Public Statements

Protection of Lawful Commerce in Arms Act

By:
Date:
Location: Washington, DC


PROTECTION OF LAWFUL COMMERCE IN ARMS ACT -- (Senate - July 29, 2005)

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Mr. CRAIG. Mr. President, we have just heard the arguments of Senator Lautenberg in relation to his amendment. I most assuredly in no way question the sincerity of the Senator and the environment in which this amendment has been offered. But if I can be as direct as I can be, if you want to drive a truck through the middle of the bill, then the Lautenberg amendment accomplishes just that. In the name of children, yes, and we should be sensitive to children. Of course we are. Children are as protected under this proposed law as anyone else because this law says go after the criminal, don't go after the law-abiding gun manufacturer or the law-abiding gun seller.

But if there is negligent entrustment, if that can be proven, certainly if that seller or if that gun dealer or manufacturer is negligent, then anyone can and should bring lawsuits. It is the same issue we faced on previous amendments trying to carve out a special class that gets favored treatment beyond another class, and with children, certainly that would sound like we would want to be more sensitive.

Most of us in the Senate are parents, but you don't have to be a parent to grieve over a child's injury or a child's death. We have many laws on the books at both the State and the Federal level, and some of them are placed by this very Senate to protect our Nation's most vulnerable--our children. We must insist on the enforcement of those laws instead of constantly trying to carve out something special that may not even be that enforceable. How do you protect children on the street? You go after the criminal who is packing the gun on the street. Every year we do that, those deaths go down in America, whether it is a child's death or whether it is an adult's death. The Lautenberg amendment speaks to those 17 years of age and younger.

If those laws are broken by the gun industry, then the bill we are considering today will not shield them from the lawsuits or from the kind of harm that is rendered. If this is the same issue--and it is--we have debated several times to carve out something special, then we should not do that. But what we are saying in the alternative that has just been offered is that the bill allows lawsuits against firearms industries by and for children to the same extent that it does for any other victim of the illegal misuse of a firearm in relation to a gun manufacturer and a gun dealer.

Under this, if a child is injured by some wrongdoing of the gun industry, the lawsuits are not barred. Again, remember yesterday we debated the question of negligence and reckless conduct, and it was very clearly established by a substantially large vote in the Senate that it does not take away the standards of law and the specifications within the Federal law today as it relates to the responsible and legal operation and performance of a gun manufacturer or a licensed Federal firearms dealer.

How do you solve the crisis or the problem so defined by Senator Lautenberg? You enforce the law. You go after the criminal. You go after the drug dealer. You go to the streets of America and you sweep them clean of those who would break the law and those who are stealing the guns and those who are misusing the guns, instead of going after a law-abiding legal citizen manufacturing a law-abiding and legal product.

I believe that is the issue, and I ask my colleagues to support us in voting for the alternative and opposing the Lautenberg amendment.

I now yield to Senator Thune for any comments he would wish to make. What is the time remaining on our side?

Mr. CRAIG. I yield 10 minutes to the Senator.

Mr. LAUTENBERG. Will the Senator yield for a question and clarification of terms?

Mr. CRAIG. I yield.

Mr. LAUTENBERG. On the question of gross negligence, does gross negligence pierce the prohibition suit?

Mr. CRAIG. If it is spelled out within the context of the Federal law today, it would. Under this bill, it would not unless it could be established as a violation of the current laws of our country and under the current standards. We are not creating a new category as the Levin amendment tried to do as it relates to gross negligence or reckless misconduct. But what was established was negligence, negligent entrustment is not exempt from this law.

Mr. LAUTENBERG. Didn't the Senator from Michigan offer the gross negligence exemption and had it denied because----

Mr. CRAIG. In the broadest sense, he did.

Reclaiming my time, I yield to the Senator from South Dakota.

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Mr. CRAIG. Mr. President, I will close out our side and then the Senator from New Jersey can close.

From 1992 to the year 2003--and this is only in the area of accidental deaths by firearms--dramatically down, 54 percent. From 2001 to 2003, down 13 percent. That category is not quite what the Senator talks about, but it is from 5 to 14 that makes up 1.6 percent of the total deaths by firearms, again dramatically down. Why? These are accidental. These are not on the streets of America. But out on the streets of America, those are also down because we are enforcing the law and going after the criminal.

That is what this is all about. It is not going after law-abiding citizens. I think the Senator from Alabama put it very clearly. All new law is being treaded upon instead of adhering to consistent, known, well-established tort law in America.

I would hope my colleagues will support my amendment, the alternative to the Lautenberg amendment. I oppose the Lautenberg amendment.

I yield back the remainder of my time and would hope that Senators could conclude their remarks as we move to a vote.

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Mr. CRAIG. Mr. President, I believe all that can be said about these two amendments has been said. I hope my colleagues join in voting for the first-degree relevant amendment I have offered that toughens up penalties and recognizes the reality that the law we have today is working to protect our law enforcement community from armor-piercing bullets.

I yield back the balance of my time. Senator Kennedy can conclude and we can move to a vote.

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Mr. CRAIG. Mr. President, no one questions Senator Corzine's intention or his sincerity as we are all sincere and concerned about making sure that the law enforcement community of this country has the best tools available, has the greatest protection available. We want the laws with them, and we believe the laws are with them. And the Fraternal Order of Police, the world's largest organization, believes the same thing.

Last year, this amendment was opposed by them strongly and they expressed that very clearly. The reason was they do not believe a special category is necessary in that relationship. What is happening here is an attempt to carve out that unique category because we think the law enforcement community is well protected under the current law.

Mr. CORZINE. Will the Senator yield?

Mr. CRAIG. I am happy to yield.

Mr. CORZINE. I point out this year, by decision, the FOP is not taking a position with regard to my amendment.

Mr. CRAIG. That is true, they are not taking a position this year, but I did get permission from Tim Richardson, if there is any question of verifying what I said, that as the executive he would be happy to accept a call.

The point is quite simple. This is an amendment that destroys the underlying intent of the legislation involved. I hope my colleagues would oppose the amendment as they did last year by a substantial vote, 56 in opposition, 38 for it.

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Mr. CRAIG. Mr. President, as the sponsor of this legislation, I rise to clear up any questions that might arise when tying to understand the intent of S. 397 and what its enactment would accomplish. The Protection of Lawful Commerce in Arms Act will eliminate predatory lawsuits that would otherwise cripple an entire industry.

First, let me make two points about what the bill will not do. Nothing in the bill is intended to allow ``leap-frogging'' over the gun dealer to the manufacturer. The negligent entrustment provision applies specifically to the situation where a dealer knows or reasonably should know that a dangerous person is purchasing a firearm with the intent to commit, and does commit a crime with that firearm. When the manufacturer has done nothing but sell a legal, nondefective product according to the law, the negligent entrustment provision would not allow bypass of the gun dealer to get to the deeper pockets of the manufacturer.

It is also important to make sure that it is clear that the ``administrative proceedings'' section will have no effect on the ability of the Department of Alcohol, Tobacco, and Firearms or any administrative agency to revoke licenses or otherwise engage in administrative proceedings to punish bad acting manufacturers, distributors, or dealers, or otherwise enforce the laws and regulations that apply to them.

The bill's definition section describes abusive suits in which a party is seeking relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.'' This definition clearly does not describe ATF enforcement proceedings. ATF is authorized to begin enforcement proceedings when a violation of our Nation's Federal gun laws has occurred. The use or misuse of the product is irrelevant to whether ATF may begin an administrative proceeding.

In fact, ATF does not use administrative enforcement proceedings to seek ``relief'' for the ``misuse'' of a product. The law does not require there be a ``use''--let alone a ``misuse'' of the product--in order for ATF to act. ATF can begin a license revocation proceeding against a dealer for even a single violation of Federal firearms laws, regardless of whether the gun is ever ``used'' or ``misused'' by anyone. ATF can begin proceedings based on recordkeeping violations, for instance, even if no firearm ever leaves the dealer's place of business.

Some have tried to suggest that a dealer selling a gun without doing the proper paperwork or meeting other legal requirements might count as ``misuse.'' This stretches the term ``use'' beyond all rational meaning, and I believe the courts of our Nation would agree. For instance, the Supreme Court has held that firearms ``use'' in a violent or drug-trafficking crime requires ``active employment.'' Bailey v. U.S., 516 U.S. 137 (1995). If there is no ``use'' of the gun--only a sale--then there can be no ``misuse.''

But even if we were to consider an illegal sale to be ``misuse,'' we must look at the last part of the definition: A ``qualified civil liability action'' involves the ``criminal or unlawful misuse of a qualified product by the person or a third party.'' If we were talking about an ATF action, then ``the person'' would be ATF itself. Obviously, that is not what ATF claims in an administrative proceeding. So we could only be speaking of a misuse by ``a third party''--and in an enforcement proceeding, neither the dealer nor the ATF is a ``third party.''

For all of these reasons, I think it is very clear that the language in this bill about ``administrative proceedings'' should in no way prevent any action by ATF to enforce the firearms laws of the United States. It is only intended to prevent--and, I believe, only does prevent--abuse of the courts and of various administrative processes that could be manipulated unfairly at the State or local level. Furthermore, it is worth noting that since the term ``administrative preceeding'' is part of the definition of a ``qualified civil action,'' then all of the exemptions of the bill permitting an action to proceed would equally apply to an administrative proceeding.

However, to make this intent absolutely clear, Senator FRIST and I have offered an amendment to the exemptions section of the bill that would add ``an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18, United States Code, or chapter 53 of the Internal Revenue Code of 1986.'' The sections of the US Code I just referenced are also known as the Gun Control Act and the National Firearms Act. Again, this would underscore what is the plain intent of the bill--to allow enforcement of our Nation's firearms laws through administrative proceedings.

Second, I want to give some examples of exactly the type of predatory lawsuits this bill will eliminate. I think it is important that we all understand the current abuse of the legal system to implement radical policies that could not be accomplished through the democratic process and understand that after passing S. 397, we will finally put an end to that abuse.

One key element of the legislation is to provide for the dismissal of pending litigation. Dismissals should be immediate--not after trial. Courts should dismiss on their own motion, instead of forcing defendants to incur the additional costs and delay of filing motions and arguing. Let me emphasize that S. 397 recognizes these lawsuits are an abuse of courts and law-abiding businesses and individuals, and I would respectfully submit that it should be the goal of our Nation's courts to eliminate those abuses as swiftly as possible, when enactment of S. 397 gives them the authority to do so.

In City of New York v. Beretta USA Corp. et al. currently set for trial on September 7 in Federal court in Brooklyn, NY, the plaintiff has asserted that industry members have created a ``public nuisance.'' The lawful sale of a highly regulated product later misused by criminals is not a public nuisance;and has never been considered a public nuisance in American jurisprudence.

Another suit expected to be affected by S. 397 is the District of Columbia and nine individual plaintiffs, Lawson, et al. that have sued members of the firearms industry, under a statute that unbelievably imposes automatic and absolute liability. The law in question says you are liable ``without regard to fault or proof of defect.'' There is also a case pending in Federal court in the District of Columbia in which a gun manufacturer is being sued under this very statute, Charlot v. Bushmaster. The companies being sued under the District ``automatic'' liability law have no defense.

Another example of a lawsuit captured by this bill is the case of Ileto v. Glock, pending in Federal court in Los Angeles, CA, against Glock and a distributor, RSR. The United States Ninth Circuit Court of Appeals said Glock and RSR could be sued for a criminal shooting when Glock sold the pistol to a Washington State police department and the distributor RSR never owned, nor sold, nor possessed the firearm.

Yet another example are the suits pending against members of the firearms industry by cities like Gary, IN and Cleveland, OH even though the States of Indiana and Ohio have themselves passed State laws similar in purpose and intent to S. 397.

In the past few days, lawyers from anti-gun interest groups have rushed to the courthouse to file at least three lawsuits, one in New York and two in Pennsylvania against manufacturers Sturm Ruger, Phoenix Arms, and Hi-Point, and I suspect there will be more suits filed in the days and weeks ahead. While we do not know all the facts yet, in one of these cases we do know that the sale by the dealer was of a single firearm made by an employee of that dealer who was an off-duty federal law enforcement agent and the firearm in that case was only transferred to the buyer after he or she filled out the required paperwork and after the background check by the FBI, as required under the Brady Act.

Congress is properly acting here under its Commerce Clause powers, as we have done many times in the past. We are also rightly concerned, as is the Department of Defense, that if these lawsuits succeed in driving gun manufacturers out of business, the national defense will be harmed. The same is true for our homeland security, as these same companies make the firearms used by law enforcement, including the Capitol Police, of which my distinguished colleague, the Democratic Leader Mr. REID was once a proud member.

The Constitution also, I believe, imposes upon Congress the duty to protect the liberties enshrined in the Bill of Rights which includes the second amendment. If the firearms manufacturers are driven out of business, that second amendment will be nothing more than an illusion.

Mr. President, I hope these comments will be helpful for anyone seeking additional information about the intent and--I believe--the impact of enacting S. 397, the Protection of Lawful Commerce in Arms Act.

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Mr. CRAIG. Mr. President, last year, we promised the cosponsors of this legislation that we would return to this issue and seek a fair opportunity to consider a bill free of any poison pill amendments.

Thanks to the leadership of Senator FRIST and the cooperation of our colleagues on both sides of the aisle, that day has come.

This bill will end an outrageous abuse of our courts and law-abiding American businesses.

This bill will not prevent a single victim from obtaining relief for wrongs done to them by anyone in the gun industry.

S. 397 will only stop one narrowly-drawn kind of lawsuit: predatory lawsuits seeking to hold legitimate, law-abiding businesses responsible for harm done by the misdeeds of people over whom they had no control.

We called this bill the Protection of Lawful Commerce in Arms. That is precisely what it is designed to do--to protect lawful commerce in the firearms that supply our nation's military and peace officers, and the millions of law-abiding citizens who acquire guns as collectors, hunters, target shooters, or for self-defense.

I am pleased that the Senate will shortly be voting on this legislation, but before we do, let me express my thanks to a number of people who made this possible.

I would like to thank the 61 cosponsors of this legislation for their support and encouragement--and the colleagues who counseled with me on shaping the debate and who spoke on the floor, especially Senators SESSIONS, CORNYN, GRAHAM, KYL, COBURN, BURR, THUNE, CHAMBLISS, HUTCHISON, HATCH, BOND, and, of course, the lead Democrat sponsor of this legislation, Senator BAUCUS.

As I have said, special thanks to the Republican majority leader and whip for their leadership and the resources of their offices, including the help of their talented staff, in particular, Eric Ueland and Sharon Soderstrom, and Jim Hippe; Kyle Simmons, John Abegg, Laura Pemberton, Brian Lewis and Malloy McDaniel.

I would also like to thank the Democrat leader, Senator REID, for his constructive input in moving us to the end of this debate.

I am especially grateful to have had the help of the Judiciary Committee, and in particular Brett Tolman of Chairman SPECTER's staff, and James Suehr.

Let me also thank the staff who spent many early and late hours working on this legislation and the debate: William Henderson, William Smith, Mary Chesser, Bob Taylor, Don Dempsey and Andy Moskowitz, James Galyean, Chip Roy, Ajit Pai, and Wendy Fleming. I want you all to know you were all part of an historic effort, and your hard work is appreciated.

Finally, I would like to thank the distinguished gentleman from Rhode Island, Senator REED, for his courtesy as we worked together to manage a difficult debate. Although we disagree on the issue, he has never been disagreeable, and I appreciate the tone he brought to the debate.

And now, Mr. President, I urge my colleagues to pass this legislation, and I ask for the yeas and nays.

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The PRESIDING OFFICER. The Senator from Idaho.

Mr. CRAIG. Mr. President, last year, I promised the cosponsors of this important legislation that we would return with a fair opportunity to work our will against the wrong kind of amendments and attempt to establish a clear record on what I think is a very important decision that the Senate is about to make.

I offer a very special thanks to Senator Frist for his cooperation and all of my colleagues who have helped bring this bill to the Senate floor in the method we have and the success we have had.

This bill is intended to do one thing, and that is to end the abuse that is now going on in the court system of America against law-abiding American businesses when they violate no law. But because the product they sell in the marketplace may ultimately be misused in a criminal act, therefore someone, including some of my colleagues, would suggest that law-abiding business person is liable. I suggest and I think the Senate tonight will say they ought not be. But if that law-abiding citizen violates the law or produces a faulty product, then they are liable. That is the law today.

What we have crafted is a very narrow exemption from predatory lawsuits seeking to hold legitimate, law-abiding people responsible for the harm done by the misdeeds of people over whom they have no control. That is what S. 397 is all about. You can put all kinds of different explanations around it, but the reality is very clear and the legislation is really very simple. It is straightforward. It is intended to be. It is intended to stop those kinds of abusive lawsuits.

Mr. President, I think we have concluded. If my colleague does not have anything more to say, my colleague and I yield back the remainder of our time.

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