Protection of Lawful Commerce in Arms Act-Motion to Proceed - Part One

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT-MOTION TO PROCEED

Mr. CRAIG. I believe several of my colleagues will want to be on the floor to speak prior to the cloture vote. As the leadership has said, there is a cloture vote on the motion to proceed to S. 1805, the Protection of Lawful Commerce in Arms Act. We will vote on that at 10:30 this morning.

I regret that a few of our colleagues are forcing us to go through this procedural step instead of simply moving to the bill. This bill is supported by a strong bipartisan majority in the Senate, and I believe as we work our way through it, that kind of bipartisan relationship will clearly demonstrate itself. More than half the Senators, as I have said, both Republicans and Democrats, are cosponsors of our legislation, including the leadership of both parties. A very similar bill passed in the House nearly a year ago by a 2-to-1 vote margin, or nearly that margin.

Some of our colleagues have already announced they intend to play politics with this bill instead of debating its merits. They have already announced their intention to throw a variety of nonrelated bills or amendments at this important-the legislation my guess is to attempt to divert the legislation and delay the completion of its consideration. However, I believe this morning's vote will demonstrate that a majority of the Senate is, indeed, ready to proceed to this bill and to debate it, as we should, offer legitimate amendments, debate those amendments fully, and vote them up or down if necessary.

This legislation addresses a crisis in our courts and the integrity of our courts because our courts are now threatened by the kind of lawsuits that are simply not necessary but politically motivated. For a long time, the trial bar has attempted to use the court system to legislate social policy or legal activity in this country. What this bill does, and what we have worked to do and why it has gained the support it has, is craft a very narrow exception in the law so that we still hold those responsible accountable for their actions under all laws.

What we have always said within the law is that someone cannot be held accountable for someone else's actions, and if someone is attempting to reach back through the law when someone is innocent and legal in their acts, then that kind of thing ought to stop. That is why we have worked hard to craft it narrowly.

I think Americans clearly understand what we are attempting to do, and that is our goal. I hope my colleagues will vote in favor of cloture so that we can get into the full and robust debate of this legislation. It is important.

I will turn to my colleague, Senator Reed, who will be handling the opposition, and then I believe at that time we will probably have several of our colleagues who wish to speak to it.

I reserve the remainder of my time.

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Mr. CRAIG. Mr. President, before I yield to the Senator from Texas, let me make a couple of comments in response to what my colleagues have been saying this morning.

Let's take the gun dealer in Tacoma, WA who is alleged to have sold to the sniper who held this area hostage for a time with a gun. His license has been revoked. There is a criminal investigation, and BATF has asked the Justice Department to file felony charges against the dealer. The business is now closed and broke.

In other words, what I am saying is if this licensed gun dealer violated current law, he will be shut down. What we are talking about here again is a narrow piece of legislation that deals with civil liability-not product liability-and in the case of current Federal law it does not touch it. The day in court comes.

But what the Senator from Connecticut didn't say is even his own gun manufacturers and their associations in those some 30-plus lawsuits have spent millions and millions of dollars before the court system defending themselves, and to date the judges have thrown them out. This is called "death through attrition" by simply taking to the courts and constantly bringing to the courts these kinds of arguments. Here is the reality.

Mr. DODD. Mr. President, will the Senator yield?

Mr. CRAIG. I can't yield at this time. My time is limited. We are going to be on this for days, as the Senator knows. We will debate it thoroughly.

But what he is suggesting is running the risk of losing all of his gun manufacturers and the hundreds of jobs that are out
there. He is concerned about jobs. I think he would be concerned about keeping the jobs he has in his home State. That is part of this discussion.

Mr. DODD. Will the Senator yield?

Mr. CRAIG. I can't yield. Time is limited.

Mr. DODD. The Senator made reference to the Senator from Connecticut.

Mr. CRAIG. I did it fairly. You are here on the floor. We will talk about this more in the hours to come.

Let me yield to my colleague from the great State of Texas.

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Mr. CRAIG. All right. It is obvious, Mr. President, by those who have already come to the floor, that this will be a very spirited debate. The great tragedy of debates such as this is that they oftentimes fail to read the bill before them, and they make the kinds of salient political statements that have nothing to do with the legislation at all.

I invite my colleagues, on S. 1805, to go to section 4 of the bill and see how narrowly we have crafted this bill to go directly at civil lawsuits that involve a third party criminal act and trying to reach back through the courts and back through the law to say to a licensed, legitimate, legal firearms dealer or a licensed, legal gun manufacturer that they have to be responsible for the criminal act of another. That simply has not been the basis of law in our country ever, nor should it be allowed to be the basis of law today.

But if that gun manufacturer and if that licensed gun dealer violate civil law, violate the law of the land, then this bill does not hold them harmless. That is the crux of the issue. That is what is important about this legislation.

There are a lot of ways to achieve a political goal in this country. Many have found that you can file frivolous and junk lawsuits in the court, and you can slowly but surely bleed down those who you file them against because they have to come and defend themselves, even though the courts constantly throw out these lawsuits. Hundreds of millions of dollars have already been spent by legitimate gun manufacturers that make those fine weapons for our men and women in Iraq, that make those fine weapons for our civil law enforcement officers wearing the blue uniforms on the streets of America.

They would say to them: No, we are going to bust those companies. And guess where that cop is going to get his gun. From China or Yugoslavia. Or our men and women in uniform are going to have to rely on foreign gun manufacturers because we have bankrupt and thrown out of this country those acting under the law in a legitimate way.

That is what S. 1805 is about. It is not about the political agenda of many. It is about what we have said in this country is a legitimate product. We even said so in the Constitution. Most other products we do not talk about in the Constitution. They were not invented. But we did speak to guns and their value in this country. Now we are saying: No, we are going to play the political game. We are going to drag them through the courts. And they are going to spend all kinds of money to do so.

I am not willing to hold anybody harmless who violates the law. I am not willing to hold anybody harmless who allegedly acts in a criminal way. Let's find out if they did. The courthouse door is not locked by S. 1805. The courthouse door is still open. This law will be applied in arguments before the court. A judge will make the determination of whether S. 1805 fits or it does not fit. Was the licensed dealer or the gun manufacturer acting in a legal way or acting against current Federal law? That is how narrowly we have defined it.

Even the minority leader, Senator Daschle, has joined with me to clarify and refine this bill even more-he will be to the floor to speak to that issue-as we worked to make sure we are on point directing this specifically at those who continually play the game at the legal bar of this country to file the frivolous or the junk lawsuits to drive a legitimate operating American company and industry out of business.

I hope my colleagues will come now and vote on the cloture motion to allow us to proceed so we can fully debate the bill, bring the necessary amendments that others will have for or against the purpose of this legislation. We will vote them up or down and move it through the Senate. That is our job. I know there are a lot of issues that are important. But there are a lot of Americans who view this as a very important issue for our country.

I yield back the remainder of my time.

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Mr. CRAIG. Madam President, I hope now, with a vote of 75 to 22, we could move on to the bill. Certainly, it is our intent to allow this bill to be debated fully and for amendments to be offered. Time is running. Some Senators spoke this morning to the urgency of time to get on to other issues. Certainly, that is important to all of us. So I hope we would be able to do so. I hope now that Senators could come to the floor with their arguments, but most importantly I hope we could move to the bill itself.

As you know, under the cloture rule there would be allowed 30 hours. I hope those in opposition would not take that 30 hours and allow us to get to the bill. What we are trying to do in S. 1805 is very narrowly go through the law and allow law-abiding gun manufacturers and law-abiding dealers to be exempt from the kind of harassment and junk lawsuits that we have now seen filed in over 30-plus different venues over the last several years. All those cases then brought to court were thrown out of the court, and the reason was quite simple. The judge looked at them and said: This lawsuit is of no value.

Here you had a law-abiding manufacturer, adhering to the laws of the United States, making a legitimate product, and that person cannot be responsible for a third party action that might have been a criminal action and the trial bar trying to reach through that person to a legitimate gun manufacturer or to a licensed gun dealer.

In doing so I believe these suits were intended, of course, to drive the gun industry out of business by holding manufacturers and dealers liable for the intention and the criminal acts of that third party over whom we all know they have had absolutely no control.

Lawsuits have been filed in multiple States with demands of massive monetary damages on a broad and varying range of injunctive relief relating to the design, manufacture, distribution, marketing, and the sale of firearms. These demands, if granted, would create major judicially imposed restrictions on interstate commerce in firearms and ammunition.

Let me, though, say with that comment, this deals with civil cases, not product liability. If a gun malfunctions and someone is damaged, or if the gun manufacturer and the gun dealer were violating civil law, then, of course, this issue that we are debating today has no value. We have clearly narrowed it and cleanly gone after the very kind of lawsuit that we have, as I mentioned, seen over the last several years.

The bill does something very important to the underlying principles of our country. It reinforces centuries of legal precedent based on individual responsibility, not responsibility for actions of third parties. Law is based on the act of the individual, and that ought to be the basis of all law. Yet what these lawsuits would argue is that somehow a legitimate, legal manufacturer of a product is liable for the way the product is used. I have oftentimes said: What about an automobile? Certainly that is a legitimate product on the road. What about an automobile dealer licensed in his State to sell automobiles? If someone takes the automobile designed to give ultimate pleasure and to move people from one point to another and they get drunk and go out and get in their vehicle and kill someone, does the trial bar then say that it is the automobile dealer and the automobile manufacturer who are liable for the drunk driver who killed someone? That is what they are trying to say and that is exactly the fundamental argument here. That is why we think it is time this Congress deal with it in a forthright way.

The House argued this issue over a year ago and, by a 2-to-1 vote said: No, we are not going to let this kind of lawsuit go forward.

But they did something our bill also does. We didn't lock the courthouse door. Some will argue this simply locks any person out of the courthouse who might place an argument against a gun manufacturer or licensed firearm dealer. The answer to that is absolutely not. This will be a basis in the law by which lawyers will argue before a judge whether these kinds of charges can legitimately be brought based on the evidence at hand. The judge will then make the decision based on the law as to how we proceed.

Many judges, as I have mentioned, have outright rejected these suits already. They literally clutter up the judicial system. Antigun activists are trying to destroy tort law by creating totally new and expansive theories of liability to win restrictions that have been rejected in the legislative process. What does that mean? If you can't win it on the floor of the U.S. Senate or in the legislatures of your States, then you get a good attorney and you go before the court and try to argue it there and establish some kind of judicial precedent.

I have already suggested that we do not lock the courthouse door, that we simply allow the argument to be placed. We think that, of course, is important to all citizens, having their day in court and their right to argue it.

Would this bill affect several high-profile cases such as the lawsuit against a gun dealer in Takoma, WA, a store where the DC snipers, John Muhammad and Lee Malvo, got their rifle?

Well, it won't, and here is the reason it won't. In the case of that situation, Malvo himself said he stole the gun.

What we are also finding is that this particular gun dealer may not have operated in the most legitimate of ways, even though the case will not be brought.

There is a criminal investigation underway. The BATF has jerked the license of the gun dealer. The business is now out of business, and it is my understanding that the BATF has asked the Justice Department to file felony charges against the gun dealer. Even within that argument, you have the contradiction of the person who did the shooting saying: I stole the gun. And, of course, you have a gun dealer who may have operated illegally. Certainly that is a case in action, although what is important is this particular bill won't affect that. If that gun dealer in Takoma, WA, is found liable, if he acted in a criminal way, if he mismanaged his records that he must keep in a way that distorted what he had and guns were stolen and he never allowed that to be known, then he is at risk.

I am not a lawyer. So I can't go to the next step of that argument, and I will not. But what I do know and what we have insisted on in the crafting of S. 1805 is that it be very straightforward and very clear. Senator Daschle has incorporated within this an amendment that I have accepted. He may bring some fine-tuning to the floor. He, too, believes we need to deal with this issue. But he is fine-tuning to make sure what I just said is absolutely clear in the law. There will be no arbitrary way for someone to wiggle through the law.

Does the bill wipe out century-old tort law principles? The answer is quite simply, no. The bill reinforces the century-old legal tenet of personal responsibility that underlies all of our judicial system. Individuals and businesses are responsible for the harm they cause.

Let me repeat that. Individuals and businesses are responsible for the harm they cause-not for the action of third parties beyond their control.

The bill protects the rights of truly injured parties. The exceptions allow for legitimate and recognized causes of action. Manufacturers or sellers of firearms or ammunition could still be sued if they violated Federal or State law, manufactured defective products, violated contracts or warranties, or knowingly sold guns to irresponsible and/or dangerous individuals.

The law is still out there. The law still provides recourse for an individual who would fall within those categories.

But to suggest that the actions of a third party, or the criminal act of a third party, is the opportunity to reach through the court by the trial bar to go after the manufacturer of a legitimate legal, law-abiding approach or product simply should not be allowed.

Most importantly, antigun activist lawyers are the ones who are trying to distort the law by fabricating new theories for imposing liability only after having repeatedly failed to cast their political agenda right here or in our State legislatures.

Just a few years ago, they admitted this when their legislative allies introduced a bill that would have expressly created a new Federal cause of action against a manufacturer, a dealer, or importer who knew or reasonably should have known that its design, manufacturing, marketing, importation, sale, or distribution practices would likely result in gun violence.

How can anyone suggest that any action of the sale of a gun, if it is done legally, results in violence? That is the reality of what we dealt with.

There are a good many more issues that we will have an opportunity to discuss in the course of this.

It looks as if Senator Kennedy is on the floor to debate the bill.

I reserve my time. I suggest the absence of a quorum.

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Mr. CRAIG. Mr. President, the Senator from California is now in the Chamber to discuss this bill. We are not on the bill yet. I hope we can get there.

The Senator from Massachusetts has taken ample time to discuss the bill, I guess, and other issues. I would like to talk about jobs. I think the Senator is right to talk about jobs, but what he didn't talk about were the jobs in Westfield, MA, at Savage Firearms. They used to be a total of 500 high-paying union jobs strong. They have spent over half a million dollars fighting the lawsuits that we would like to prohibit. Now there they are 160 strong. They have lost jobs in Massachusetts. I want the Senator from Massachusetts to stand with me and protect the hard-working men and women at Savage Firearms.

The bill is about jobs, I say to the Senator from Massachusetts. That is what this issue is all about.

Why is our bill endorsed by the United Steelworkers and by the United Auto Workers? The reason it is endorsed is because these high-paying jobs at law-abiding gun manufacturing locations are being eliminated by the glut of a thousand lawsuits-in this case over 30-where they have had to go to court, spend a lot of money, and the court threw it out because it was frivolous, but the company was less viable because these are really not big companies.

If we took all of the firearms manufacturers in the United States today and brought them all into one company, they would be smaller than a Fortune 500 company.

Let me read a great quote from the Colt manufacturers, Colt firearms. They are located in Connecticut:

We today have 383 members from the Colt workforce. By comparison, about 5 years ago, we had over 600 Colt workers who were members of our local. Our members built the finest small arms in the world, including the M-4 carbine, the M-16 rifle, and the M-203 grenade launcher.

I believe those are the firearms of our military.

Many of them were shipped to the U.S. military and lawfully provided for the principles of democracy.

That company is at risk today unless we pass the kind of legislation about which we are talking.

I do believe the working men and women of this country are a special interest. I think the tens of millions of law-abiding gun owners in our country are a special interest. So it is really a matter of how you define "special interest." If it has been said once on the floor, it has been said 15 times in the last 45 minutes: special interest, special interest, special interest.

Let's talk about the working men and women of the firearms industry. Let's talk about the law-abiding gun owners of America as a special interest of us, this country, all Americans. You are darn right we debate special interests on the floor of the Senate, but it really is a matter of definition.

Time limit? We are not proposing a time limit. Senators can speak for up to an hour on this issue now, and if they want to, they have 30 hours postcloture before we get to the bill. I hope we don't spend all of that time doing that. I would like to get to the bill. I know the Senator from California has talked about an amendment. I think she would probably want to offer that amendment and have it amply debated.

We do not want to limit time, but we do want to talk about special interests: law-abiding gun owners in our country, working men and women of the law-abiding gun manufacturers, the people who work at legal gun shops all over this country that by law are licensed and that by law carry out the law. That is what we are talking about today. Call them a special interest, if you will. I do. My job is to try, under the law, to protect them from the kinds of frivolous lawsuits the trial bar has decided to bring in court after court because they couldn't gain legislation on the floor to change the character of our country. That is the issue at hand.

I am glad the Senator from Massachusetts has come to talk about special interests. I wish he would understand that the hard-working men and women in Westfield, MA, for Savage Firearms are, in fact, a special interest-a special interest of mine and, I am quite confident, a special interest of his.

I yield the floor.

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Mr. CRAIG. Mr. President, I will be brief. The Senator from Ohio has been on the floor a good long while and deserves to be heard.

As you know, we are in a postcloture environment on a motion to proceed. I would hope by early afternoon we can actually get on the bill and begin to consider some amendments on this critical piece of legislation. It has been portrayed by many in many different ways. I would ask the Senators to pick up this very small document, 1805. In fact, there are exactly 11 pages of big print so all of us can clearly read it.

I ask Senators to go to section 4 of the bill and read what we are doing. In a very narrow way, we are denying a third party the ability to reach through the law and say to a law-abiding gun manufacturer and a law-abiding firearms dealer: When you sold that weapon, it down the road got misused in a criminal act and, therefore, you are responsible.

Shame on us for suggesting that as a basis of law today in our country. We have denied it. We have always held the individual responsible. That is clearly where we ought to go. That is why I think this ought to be a clean bill. There are some who want to offer different amendments. We can deal with them on a different day in a different way. Let's keep this bill clean. This is tort reform in the very narrowest of margins, and I hope Senators can work with us to make sure that in final passage we have a clean bill.

I yield the floor.

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Mr. CRAIG. Mr. President, let me remind my colleagues again that we are in a postcloture environment. We are hoping we can get on the bill and hoping we can look at some amendments. I do have to respond to try to keep this debate clear and honest and the RECORD representing what it ought to represent.

My colleague from Illinois says the reason we have this debate today is because of George W. Bush. He forgot that 10 Democrat cosponsors and his own leadership are cosponsoring this bill and are openly advocating its passage. This is not about George W. Bush. This is about the rights of Americans under existing law, and also frivolous third-party lawsuits that we ought to block. That is what the essence of this debate is about.

Now, certainly the Senator from Illinois can say what he wishes to say on the floor. Will George W. Bush sign this bill if it gets to his desk? He says he will. I would think any law-abiding American U.S. President would want to preserve law in this country, the kind of law that would suggest that any President would want to reinforce centuries of legal precedents based on one premise, individual responsibility.

Are we suggesting that, as the Senator from Illinois suggests, a gun manufacturer ought to be liable for a criminal act of a third party? Well, he used the word-let me see; I have written it down here-"establish a standard of use." I believe that was the term used.

How many automobile dealers establish this standard of use of their product when it is manufactured in his State and sold in the marketplace, that it will be used safely and lawfully? Now, would any automobile manufacturer intentionally sell a car knowing a drunk was going to get in it and wipe out a teenager or a teenager wipe out an adult?

Mr. DURBIN. Will the Senator yield for a question?

Mr. CRAIG. Not at the moment. I want to be quick here so I can yield to one of your colleagues.

Of course they would not.

Does any manufacturer of a legal firearm make the clear assumption that it is going to be used illegally? Of course they do not. They make them under the guidelines of the law. They abide by the law. And we protect those who do. We do not-we do not-protect those who do not abide by the law.

The Senator also went on to say that this would somehow protect trade associations. Go to the bill. You have held it up. I wish you would read it in detail. It is not the intent of our bill to do so. In fact, the Daschle amendment clarifies that we do not necessarily protect trade associations. Well, then you better talk to Senator Daschle. He is the amender of the legislation that is before us to clarify that point. We believe we have effectively clarified it, and the Congressional Research Service says we have done just that.

So if a trade association acts negligently, acts outside the letter of the law, then they are every bit as liable as they would be under current law. So we do not reach out to do that.

Do we close the courthouse door? Absolutely not. The plaintiff makes it to the courthouse, with his or her attorney. They argue it before the judge. The judge weighs it in light of the law-if this were to become law-and makes the decision as to whether that case can go forward. I think that is clearly an important argument that needs to be established.

As to the argument about lawsuits involving, what they describe as, high volume gun sales-I think he spoke to a tragic situation in Illinois-the regulations of the numbers of guns that can be sold in a single transaction, however, are not the job of the courts. They are the job of the legislators. They are that Senator's job and this Senator's job, if you can gain a majority of the votes to establish a certain number of gun sales per day. The job of the dealer is to check the background, to check the legality, and to do so openly and knowingly.

Now, having said that, let's talk about the dealer. In S. 1805, we exclude from its protection actions brought against a transferer convicted under section 924(h), title 18 of the United States Code, or a comparable State felony law. 18 U.S.C., section 924(h), provides: whoever knowingly transfers a firearm knowing that such firearm will be used to commit a crime of violence or drug trafficking crime shall be imprisoned not more than 10 years, fined in accordance with this title.

S. 1805 does not wipe out this provision of the United States Code. We intentionally narrowed its focus so that would not happen.

The Senator from Illinois is rightfully concerned about the trafficking of firearms, as am I. I certainly do not want that to happen. But what I do not want to happen either is for hard-working men and women of this country-many of them union men and women-who are working in firearms production in this country today for civilian use and for military use, to lose their jobs because their company has simply been strangled to death by lawsuit after lawsuit after lawsuit. That is what is happening.

We have lost thousands of legitimate jobs in this country because this industry is a very small industry in total. Put it all together, and it is less than a Fortune 500 company. That is why it is extremely cautious about how it operates within the law, and it is why our judges have recognized the frivolous character of these lawsuits and have thrown them all out.

The problem is simply this: It costs hundreds of millions of dollars to argue the law and to argue before the courts and to continue this legal dance that certainly those who are now engaged in it put law-abiding manufacturers and dealers through. Well, that is going to be part of the argument we look at here.

But I do ask our colleagues to focus on the bill, to understand how narrowly it has been designed. It is a product of a bipartisan effort, not a single-interest effort but a bipartisan effort, to reform our tort process in a way to deny a very particular frivolous kind of lawsuit of the kind that is addressed in S. 1805.

I yield the floor.

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Mr. CRAIG. Mr. President, again, I remind our colleagues that we are in a postcloture environment. What does that mean? It means we could actually debate the broad issue of the bill for upwards of 30 hours before we actually get to the bill, even though 75 of us have said let's move on, let's get to this legislation, debate it, offer amendments, and bring it to final passage.

My colleague from Montana is leaving. I thank him for his statement of the work he has done in behalf of gun owners and manufacturers and law-abiding gun dealers. I thank him for being an original cosponsor and working with me to get S. 1805 to the floor.

I thought what I might do for a few moments, while we are waiting for leadership on both sides of the aisle to see if we can't find an agreement on how to proceed to this legislation, is to deal with some finer points that are involved in the legislation. My guess is, over the course of this week and probably the next week, you are going to hear a great deal said about the bill-11 pages, a relatively small bill-and what it does or does not do.

S. 1805 has basically two substantive provisions. First, section 3(a) states that:

A qualified civil liability action may not be brought in a Federal or State court.

A qualified action may not be brought.

Second, section 3(b) orders the immediate dismissal of a qualified civil liability action pending on the date of enactment of S. 1805. The key to S. 1805, therefore, is the definition of "qualified civil liability action." That is what most of our colleagues, I hope, would focus on, even though the issue spirals around the use of a gun and that brings about substantial heated debate and political decisions.

Key in S. 1805, again, is the definition of a civil liability action which is addressed in the definition section, then, in section 4(5). A qualified civil liability action is defined as a lawsuit:

. . . brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages resulting from the criminal or unlawful misuse of a qualified product by the person or a third party. . . .

Subsection (5), the definition, then excludes five categories of lawsuits from coverage under S. 1805:

First:

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted.
In other words, we don't exempt that. We exclude these categories from that definition so you can still go to court, you can still gain redress from that.

The second one is:

(ii) an action brought against a seller for negligent entrustment or negligence per se.
Negligent entrustment is defined:

. . . the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product supplied is likely to, or does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

In other words, if the seller knows that this is going to be used for criminal intent or for misuse, then of course that provision is exempt from the protection under 1806.

Third:

(iii) an action in which a manufacturer or seller of a qualified product [knowingly and willfully] violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which the relief is sought. . . .

Again, the courthouse door is open to that.

(iv) an action for breach of contract or warranty in connection with the purchase of the product.

That is available.

(v) an action for physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a manner that is reasonably foreseeable.

Those are really the key points here that we do not in any way exempt. What we are doing in S. 1805 is very simple. We are trying to reinforce centuries of legal precedent, based on individual responsibilities, not responsible for actions of third parties. In other words, once again the trial bar is trying to suggest that a criminal act is the responsibility of the person who manufactured the product that the criminal may use in that act. We have never allowed that to stand in our courts, and now we are trying to assure that a very small industry in this country can be protected from the kinds of frivolous lawsuits filed that are draining them of their very livelihood.

Earlier this afternoon I talked about the hundreds of jobs that have been lost. Some scoffed and said, "This is a jobs bill?"

You bet it is a jobs bill. If you destroy that industry, thousands of high-paying jobs will be lost across the United States in an industry that is legal, that is law abiding, that one might argue is even enshrined in the Constitution under the second amendment. That is why we are here today.

Is it important? You bet it is important. Is it a part of what our Senate ought to be debating? Absolutely.

If we are able to do this, we establish extremely important precedent that other manufacturers of law-abiding products will look at, and should look at. Why should the trial bar be allowed to suggest that the maker of a Chevrolet, Ford, Dodge, or Toyota pickup used by a drunk driver that ended up killing someone be responsible for it? Because they manufactured it? Since when is this country going to exempt the actions of the individual and say, Oh, no, it really wasn't his fault; it was the fault of the vehicle. It was the fault of an inanimate object known as a gun.

That is the issue today and it really is fundamental. You hear a great many arguments. One of them is that we are locking the courthouse door. No, all those principles I talked about are exempt and can be tried and can be argued before the courts. Even in S. 1805, somebody who by definition brings a junk lawsuit gets to argue the case before the judge. They get through the courthouse door. The judge then listens, applies the law, and makes a determination whether this is a legitimate case that should go forward or it was an illegitimate case.

Will this bill affect several high profile cases such as the lawsuit against a gun dealer in Tacoma, WA, from whose store the DC snipers, John Muhammad and Lee Malvo, got their rifle? Does it exempt that dealer if he acted unlawfully? We don't know that yet. We know that BATF has investigated it and jerked his firearm license and the store is now closed. We are told that BATF has asked the Justice Department to file criminal charges against him.

But we do know one thing. We do know that Lee Malvo has admitted to stealing the gun from that dealer. Therefore, there is a principle in tort law that says that a manufacturer is not liable if the product used, being his, was stolen before it was used. That we do know. And now we have an admission by the person who pulled the trigger that the Bushman rifle used in those tragic incidents here that kept this city rivetted for a tremendous amount of time and took numerous lives was a stolen weapon.

Having said all of that, the case is yet to be investigated. The facts are yet to be truly known. Allegedly, guns went missing. Allegedly, they were not reported.

If all of that is true, then the owner of this particular gun shop in Tacoma, WA could well be liable and could well come under the criminal laws of today, and S. 1805 would do nothing about that and shouldn't do anything about that.

Once again, as I have already said numerous times today-and I am sure I will repeat it over the course of a good number of days-this is a very narrow approach. It is an important one.

Senator Daschle, the minority leader, and I joined in his amendment embodied in S. 1805 to ensure that we refine it even more to make it very clear exactly what and who might be exempt and for what reason. We think we have so effectively narrowed it that it has met the broad acceptance of our colleagues in the Senate.

I hope the cloture vote today is reflective of some of that acceptance as we work and debate through this issue. I hope leadership on both sides can get us to an agreement so we might proceed and get on the bill and deal with some of the amendments at hand. I hope we can defeat them. I would like a clean bill. The administration would like a clean bill. There is ample time to debate other issues. There is ample time to debate extension of the assault ban. I strongly oppose that. That was legislation I called a political placebo at a time when everybody wanted to try to do something, even though they knew it was impossible to control the criminal element in this country unless you got tough on crime. So we passed that legislation.

History shows the assault weapon ban did little to no good-except it did one thing. It kept law-abiding citizens from buying certain types of firearms even though our second amendment would suggest they have the right to own them.

That is why I hope the assault weapon ban as it expires can be left to its expiration. I hope we can defeat that.

The other issue, the gun show loophole: Is there a loophole in gun shows?

Let me set the stage for that. I would like to compare a gun show and an auto show. If you are a licensed car dealer or a licensed manufacturer of automobiles-I don't know that you have to be licensed to manufacture automobiles-then you can put all kinds of auto shows together, and you can sell from those shows. You can demonstrate your product. You can sell all kinds of things with no prohibition. In Idaho, the only prohibition, if you sell more than five a year, is you have to get a license to be an auto dealer. What we say in gun shows is if you are a licensed gun dealer at a show, then you must comply with all laws during that show in the sale of a firearm. But if you are an individual who sells very few firearms but you might sell one to a friend or someone else on occasion, and you sell at a gun show, or you met a friend at a gun show and you tell him about a gun you have and the transaction occurs, you don't have to comply with a background check; You are not a licensed dealer.

Someone would suggest that is a loophole. I don't see that as a loophole because outside of gun shows it is not considered one-only if it is inside.

What this is all about is establishing a Federal regulation to control gun shows. This will be a new entity of Federal control over something that is clearly a free market process. Do we want Federal regulations over the control of auto shows? Do we want Federal regulations in control over new-clothing shows? No. That is the marketplace at work. But if there are Federal laws that control these different products and/or sale, then they comply. They comply inside the show or outside the show. That is standard today.

What our colleagues are trying to do in suggesting there is a loophole, which I believe I have suggested by demonstration of facts does not exist, is to control the gun show, and to suggest if you are an individual and you make a sale at a gun show, you then must do background checks and all other due diligence you would not do if you were outside the gun show, speaking neighbor to neighbor, friend to friend, and were not viewed as a licensed dealer, or not a gun dealer in any way.

That is the reality of what we are talking about. Those are some of the amendments we will have which we will be dealing with on the floor. I hope as we deal with those, we might deal with others such as concealed carry. We might look at the gun ban of Washington, DC, where law-abiding citizens cannot legitimately own firearms, and a variety of other issues.

The President asked-and I would like to honor that because I believe strongly in it, too-that we produce a clean bill just exactly like the House did on a better than 2-to-1 margin-285 to 140-that we produce a clean bill and get it to the President's desk; wipe out these frivolous lawsuits but still allow law-abiding citizens who might be injured by illegal action of a gun dealer or illegal action of a gun manufacturer their day in court without the kind of frivolous and/or junk lawsuits-the kind that are costing the industry millions upon millions of dollars right now and slowly but surely diminishing them.

Lastly, if we are not successful and if the trial bar is at some day and at some point successful, my guess is this relatively small industry in our country will not be here. What happens when we no longer produce high-quality firearms in this country for our military or for our police? Do we rely on China or Yugoslavia or Hungary or some other foreign country to produce the firearms our men and women in Iraq use to defend themselves and to enforce the law? Do we put them at risk? Do we say to our good law enforcement officers, You are going to have a foreign firearm on your hip and it will not be produced by a legitimate company in this country as a part of our national protection and our freedoms and rights?

That is ultimately what could happen because already we have seen these industries go out of business because of the risk of doing business and the liability involved based on these types of lawsuits we are now trying to shape and limit. That is the essence of S. 1805.

I hope we can soon move to the bill and begin debating it in its entirety, and certainly any amendments that would then come forward, debate those, get an up-or-down vote and move toward final passage.

With that, I yield the floor and suggest the absence of a quorum.