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Protection of Lawful Commerce in Arms Act

Location: Washington, DC


Mr. CRAIG. Mr. President, today we begin the third day of debate on this important bill, S. 1805, addressing the problem that should outrage many Members of this Senate and by the cosponsorship we have at this moment, I believe that is the case. That outrage should be against the abuse of our courts by those who cannot change public policy through representative government but instead are attempting an end run around the State and Federal legislatures to impose their political agenda on the people of this country through litigation. In this case, their target is the one consumer product whose access is protected by nothing less than the U.S. Constitution itself; that is, firearms.

The bill, the Protection of Lawful Commerce In Arms Act, we are talking about today and debated thoroughly yesterday and the day before, would stop what I call junk lawsuits that attempt to pin the blame and the cost of criminal misbehavior on business men and women who are following the law and selling a legal product.

This bill responds to a series of lawsuits filed primarily by municipalities advancing a variety of theories as to why gun manufacturers and sellers should be liable for the cost of injuries caused by people over whom they have no control, criminals who use firearms illegally.

This is a bipartisan bill. Let me acknowledge my Democrat sponsor, MAX BAUCUS of Montana, for his work on this initiative. Many others have helped advance it, as well as the leaders and the assistant leaders on both sides. By that demonstration, this bill is truly a bipartisan effort. The cosponsors we have to date are substantial. With myself and Senator Baucus included, we now have 54 cosponsors.

We introduced the bill nearly a year ago, last March, with more than half of the Senate as cosponsors at that time: Senator Alexander, Senator Allard, Senator Allen, Senator Bennett, Senator Bond, Senator Breaux, Senator Brownback, Senator Bunning, Senator Burns, Senator Campbell, Senator Chambliss, Senator Cochran, Senator Coleman, Senator Collins, Senator Cornyn, Senator Crapo, Senator Dole, Senator Domenici, Senator Dorgan, Senator Ensign, Senator Enzi, Senator Graham of South Carolina, Senator Grassley, Senator Gregg, Senator Hagel, Senator Hatch, Senator Hutchison, Senator Inhofe, Senator Johnson, Senator Kyl, Senator Landrieu, Senator Lincoln, Senator Lott, Senator Miller, Senator Murkowski, Senator Nelson of Nebraska, Senator Nickles, Senator Roberts, Senator Santorum, Senator Sessions, Senator Shelby, Senator Snowe, Senator Smith, Senator Specter, Senator Stevens, Senator Sununu, Senator Talent, Senator Thomas, and Senator Voinovich.

This range of cosponsorship reflects extraordinarily widespread support that crosses party and geographical lines and covers the spectrum of political ideologies that is clearly always represented in the Senate. It demonstrates a strong commitment by a majority of this body to take a stand against a trend of predatory litigation that impugns the integrity of our courts, threatens a domestic industry that is critical to our Nation's defense, jeopardizes hundreds of thousands of good-paying jobs, and puts at risk access Americans have to a legal product used for hundreds of years across this Nation for lawful purposes such as recreation and defense.

We have been joined in this effort by a host of supporting organizations representing literally tens of millions of Americans from all walks of life. I thank them all for their effort to help pass the Protection of Lawful Commerce in Arms Act. I invite my colleagues to consider a broad cross section of American citizens represented by such diverse organizations as unions, including United Mine Workers of America, United Steelworkers of America, United Automobile, Aerospace and Agricultural Implement Workers of America, the locals of the International Association of Machinists and Aerospace Workers; business groups, including the U.S. Chamber of Commerce, the Alliance of America's Insurers, the National Association of Wholesale Distributors, the National Association of Manufacturers, and the American Tort Reform Association, the National Rifle Association; and more than 30 different sportsmen's groups and organizations whose members are engaged in the conservation and hunting and the shooting sports industry in all 50 States across this great Nation.

I have used the term "junk lawsuits," and I want to make it very clear, because this was part of our discussion yesterday, to anyone listening to this debate, I do not mean any disrespect to the victims of gun violence in any way who might be involved or brought into these actions by other groups.

Although their names are sometimes used in the lawsuits, they are not the people who came up with the notion of going after the industry instead of going after criminals responsible for their injuries or for their losses. The notion originated with some bureaucrats and some anti-gun advocates, and the lawyers they were with.

Victims, including their families and communities, deserve our support and our compassion, not to mention our insistence, on the aggressive enforcement of the laws that provide punishment for the criminals who have caused harm to them.

There are adequate laws out there now, and we constantly encourage our courts to go after the criminal, to lock them up, and to toss the key away when they are involved in gun violence and when they use a gun in the commission of a crime. If those laws need to be toughened, our law enforcement efforts improved, then the proper source of help is the legislatures and the governments, not the courts, and certainly not law-abiding businessmen and workers who have nothing to do with their victimization. No.

The reason there are junk lawsuits is that they do not target the responsible party for those terrible crimes. They are predatory litigation looking for a convenient deep pocket to pay for somebody else's criminal behavior. Let me repeat that. I define junk lawsuits as predatory litigation looking for a convenient deep pocket to pay for somebody else's criminal behavior. They are junk lawsuits by any definition of the word because they are driven by political motives to hobble or bankrupt the gun industry as a way to control guns, not to control crime.

By definition, the legislation we are considering today aims to stop lawsuits that are trying to force the gun industry into paying for the crimes of people over whom they have absolutely no control.

Let me stop a minute right here and make sure everyone understands the very limited nature of this bill. I have expressed it. I have explained it. I have talked about it. I have asked all of our Members to read S. 1805.

What this bill does not do is as important as what it does. This is not a gun industry immunity bill. This bill does not create a legal shield for anyone who manufacturers or sells firearms. It does not protect members of the gun industry from every lawsuit or legal action that could be filed against them. It does not prevent them from being sued for their own misconduct.

Let me repeat that. It does not prevent them-"them," the gun industry-from being sued for their own misconduct. This bill only stops one extremely narrow category of lawsuits: lawsuits that attempt to force the gun industry to pay for the crimes of third parties over whom they have no control.

We have tried to make that limitation clear in the bill in several ways. For instance, section 2 of the bill says its No. 1 purpose is:

To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products for the harm caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

We have also tried to make the bill's narrow purpose clear by defining the kind of lawsuit that is prohibited. Section 4 defines the one and only kind of lawsuit prohibited by this bill. Let me repeat that. Section 4 defines the one and only kind of lawsuit prohibited by this bill. Let me quote:

a civil action 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 . . .

We have also tried to make the narrow scope of the bill clear by listing specific kinds of lawsuits that are not prohibited. Section 4 says they include: actions for harm resulting from defects in the firearm itself when used as intended-that is product liability suits-actions based on the negligence or negligent entrustment by the gun manufacturer, seller, or trade association; actions for breach of contract by those parties.

Furthermore, if someone has been convicted under title 18, section 924(h), in plain English, that means someone who has been convicted of transferring a firearm knowing that the gun will be used to commit a crime of violence or drug trafficking, that individual is not shielded from a civil lawsuit by someone harmed by the firearms transfer.

Finally, the bill does not protect any member of the gun industry from lawsuits for harm resulting from any illegal action they have committed. Let me repeat that. If a gun dealer, manufacturer, or trade association violates the law, this bill is not going to protect them from a lawsuit brought against them for harm resulting from that misconduct.

What I have listed for my colleagues' convenience is all spelled out in section 4 of the bill. We have been through that section several times over the last several days. Again, this is a rundown of the universe of lawsuits against members of the firearms industry that would not be stopped-I repeat, not be stopped-by this narrowly targeted bill.

What all these nonprohibited lawsuits have in common is that they involve actual misconduct or wrongful actions of some sort by a gun manufacturer, seller, or trade association. Whether you support or oppose the bill, I think we can all agree that individuals should not be shielded from the legal repercussions of their own lawless acts. The Protection of Lawful Commerce in Arms Act expressly does not provide such a shield.

I am going to repeat this again because some opponents continue to mischaracterize the bill. This is not a gun industry immunity bill. It prohibits one kind of lawsuit: a suit trying to fix the blame of a third party's criminal acts or misdeeds on the manufacturer or seller of the firearm used in that crime.

Even though this is a narrowly focused bill, it is an extremely important bill. The junk lawsuits we are addressing today would reverse a longstanding legal principle in this country that manufacturers of products are not responsible for the criminal-I repeat, the criminal-misuse of their products.

You do not have to be a lawyer to know that runaway juries and activist judges can turn common sense on its head in specific cases, setting precedents that have had dramatic repercussions. The potential repercussions here could be devastating.

If a gun manufacturer is held liable for the harm done by a criminal for misusing a gun, then there is nothing to stop the manufacturers of any products used in crimes from having to bear the cost of those crimes. Since when is this country going to step to that level? So automobile manufacturers will have to take the blame for the death of a bystander who gets in the way of a drunk driver? Yes, there are some who would suggest that. The local hardware store will be held responsible for a kitchen knife it sold that was later used in the crime of rape? A baseball team, whose bat was used to bludgeon a victim, will have to pay for the cost of that crime?

Now, does that sound silly to the average listener? It may. But those kinds of charges are being brought today because this country does not want to hold its criminal element accountable, in many instances.

It is not just unfair to hold law-abiding businesses and workers responsible for criminal misconduct with the products they make and sell, but it would also bring havoc to our marketplaces.

Hold on to your wallets, America, because those businesses that don't actually go into bankruptcy will have to pass their costs through to the consumer. My guess is that many in the anti-gun community would say: That is just fine; if we cannot bankrupt the business, then let's price the product out of the range of the average law-abiding citizen who would like to afford a gun. To the criminal element that probably steals for a living, they may have the kind of funds to buy that gun in the black market at any price, and oftentimes they do.

Even without being successful, this litigation imposes enormous financial burdens on the gun industry. It is important to keep in mind that the deep pocket of the gun industry isn't all that deep. In hearings on the House side, experts testified that the firearms industry, taken together-I mean put them all together, look at their assets, their income-would not collectively equal one Fortune 500 company.

Last year it was estimated-and we can only estimate because the costs of litigation are confidential business information-that these baseless lawsuits have cost the firearms industry more than $100 million. Furthermore, don't think these companies can just pass the costs off to their insurer because in nearly every case, insurance carriers have denied coverage.

I quote from what a Massachusetts union had to say about the issue, the union whose members work at the Savage Arms Company in Westfield, MA:

Today, we have 160 members from Savage workforce. By comparison, about a dozen years ago, we had over 500 Savage
workers who were members of our Local. . . .

Savage Arms is not alone. Other businesses have closed their doors, and the jobs have not been lost because of the sheer cost, the jobs have been lost because of the sheer cost of fighting these junk lawsuits.

The impact on innocent workers and communities is not the only potential repercussion of these lawsuits. If U.S. firearms manufacturers close their doors, where will our military and peace officers have to go to obtain their guns? Do we then have to start a government gun manufacturing company? I doubt that the efficiencies and the qualities and the costs would be the same. Surely we don't want foreign suppliers to control our national defense and community law enforcement, not to mention the ability of individual American citizens to exercise their second amendment protected rights through accessing firearms for self-defense, recreation, and other lawful purposes.

For all these reasons, more than 30 States have laws on the books offering some protection for the gun industry from these extraordinary suits. Support has steadily grown in Congress for taking action at the Federal level. This would not be the first time Congress had acted to prevent this kind of threat to industries. Some would suggest it is unprecedented, it has never happened before.

Let me give an example. There are a number of Members in this Chamber who were serving when the Congress passed the General Aviation Revitalization Act barring product liability suits against manufacturers of planes that were more than 18 years old. Just a couple of years ago, in the Homeland Security Act, Congress placed limits on the liability of a half a dozen industries, including manufacturers of smallpox vaccine and sellers of antiterrorist technologies. These are only a couple examples out of a significant list of Federal tort reform measures that have been enacted over the years when Congress perceived a need to protect a specific sector of our economy or defense interests from burdensome, unfair, and/or frivolous litigation.

I could go on. I have said enough for the moment. My colleagues are here. Senator Reed, who is handling the opposition, has statements to make. I believe Senator Levin has an amendment he would like to offer. But clearly, this is an issue whose time has come. It is time to step out and say: We are not going to suggest to law-abiding citizens that you ought to bear the brunt of the criminal action. That is not the case. Law-abiding citizens already bear a substantial amount of that brunt. Taxpayers usually pick up most of the bills in these tragic instances. That is why enforcing the law, putting those who misuse firearms behind bars, is what it really ought to be all about.

But for social purposes, for political purposes, for whatever reason that the anti-gun community has not been able to legislate either on the floor of the Senate, on the floor of the House, or in State legislatures across the Nation, they now run to the court system.

We suggest they can't do that, nor should they do that. We want to protect the victims. We certainly want to protect them from the criminal element. Much legislation is talked about now for the victim and victims' rights. I support all of those kinds of things. But why should the law-abiding manufacturer of any product in this country, that is quality but simply misused and that misuse takes the life of a third party-why should that manufacturer be responsible? We already have a broad range of areas in which that responsibility is described and in which the consumer is protected if that responsibility is not followed by the manufacturer or those who sell that product in the marketplace. That is an arena that is well litigated today. That is an arena in tort law that is well spelled out.

Here today and in past lawsuits, we have had great imagination that tries to cook up the issue of negligence or to redefine it or shape it in a way that Americans have said and that tort law has said for centuries: You shall not go there; you cannot go there.

Judges are saying that today and have said it consistently in these kinds of lawsuits. That doesn't stop the lawsuits from coming. That does not stop these lawsuits from draining hundreds of millions of dollars out of a law-abiding, responsible commercial and manufacturer entities.

I reserve the remainder of my time and yield the floor.

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