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Protection of Lawful Commerce in Arms Act - Part Two

Location: Washington, DC

Mr. CRAIG. Madam President, time is running on both sides, and running out rapidly, because at 4 o'clock Senator Bingaman will have the floor for the purpose of offering an amendment.

So I want to make some concluding remarks, at least for today, as it relates to the gun show loophole amendment.

I think, clearly, we have established that there are well over 1,000 gun shows commercially in this country that are registered and abide by the law, some 300 exhibitors on the average, and some 4,000 people who attend each show on a regular basis. And the law that is currently on the books outside of the gun show is appropriately and legally and necessarily on the books inside the gun show.

So how does the word "loophole" appear? Well, it appeared out of a special study that said, yes, rarely but on occasion-those are my words, not the study's words-does somebody get a gun out of a gun show that is used by them or someone else in the commission of a crime. And the answer is, yes, around 1 percent. Oh, therefore, there must be a loophole.

Well, there is a loophole, and it is also outside of a gun show, if you want to argue it from that standpoint. It is called the back streets and the alleys and the car trunks and the drug traffickers who deal in this illicit commerce for not good will, but for profit. Usually many acquire their firearms who then use them in the commission of a crime in another way.

Here is our problem with any kind of failure to do instant check. That is, the 3-day waiting period is still in place. We know that. Gun shows, by their own activity, are a 2-day event. If you drive 100 miles or 200 or 300 miles to a show, you want to buy a gun that day. You want an instant background check. There is a waiting period involved in normal commerce-I should put it this way: the Lautenberg amendment allowed a 3-day waiting period, the same as current law. That is the only uniqueness I know to a gun show. It is like a flea market, from the standpoint that you go there to buy, not to look and think and buy later. You need instant capability to say yes or no. You are legitimate in that commerce. We are working hard to get there with federally licensed firearm dealers.

Also, I argue those who are collectors and casual dealers at gun shows should not be tied to that law because they are not involved in major commerce. Those are some of the complications involved in this type of restriction.

Then the last argument I place is a great frustration. Much of what we do is impulse buying. But, then again, much of what we do isn't impulse buying. If you are buying a $200 or $300 or $400 or $500 item, sometimes you have to go home and talk to somebody else about that kind of acquisition. So if you do and days later you call the individual who may not be-well, if he or she isn't a dealer, they are not required to comply with the background check, but are very legitimate and honest.

The question is, if their amendment were law, would you in fact be causing that person to violate the law or forcing that individual to find a way to do a background check when they were the collector or the casual seller of a particular firearm? Those are, I believe, legitimate questions that speak to the complication and frustration of stepping into a commerce in which there are no Federal regulations today, other than existing Federal law that governs the sale of firearms by licensed dealers.

Those are our concerns. Once again, I appeal to my colleagues to turn down this amendment with a no vote, to keep S. 1805 clean, so we can get it to the President's desk, hoping it will become law.

I understand Senator Cornyn is on his way to the floor and hopes to speak for a few moments on this issue. We hope he will be able to get here before 4 o'clock when our time runs out on this particular amendment.


Mr. CRAIG. Thank you, Madam President.

"Momentarily," but they were caught. That is how my colleague just referred to those three terrorists he highlighted as a major reason to establish a new bureaucratic hurdle for law-abiding citizens. How were they caught? They violated the law. They violated the current law that governs the sale of firearms, that controls, or hopefully controls, illegal aliens from acquiring firearms, and all the rest of it. That is a recordable fact.

Did they acquire the firearms at a gun show? Maybe they did. Were they caught? Yes. Does it mean the loophole stops that, that the sieve is so tight nothing falls through? I don't think it means that. If the desire is there to acquire the gun, then they simply stand at the door. The person or persons involved, if they are not licensed federally regulated firearms dealers, can step outside and, in a different transaction, sell that weapon. That is the tragedy today of any commerce, especially by those seeking to acquire illegally and seeking to do harm with that which they acquire-whether it be explosives or a firearm of any kind. So walk into a gun show and say I would really be interested in selling that firearm. But if you would meet me outside somewhere, maybe I could buy it. I would hope 100 percent of those who are registered would never do that and 99.9 percent of them won't because they are law-abiding citizens and would not. If there is a loophole, there is another one, and that is the reality of what we are trying to deal with.

Finally, let us understand that we have been able to reduce crime rates in this country and we have been able to save lives in this country when we said if you use a gun in the commission of a crime, you do the time. No questions asked. You are not plea-bargained back to the street. You are not granted leniency. If you use the gun, you do the time.

Time and again where that principle has been used, commission of a crime with the use of a firearm drops dramatically. The fellow who was robbing the 7-Eleven stores in Richmond with a baseball bat and caught was asked by the authorities why he didn't use a gun. He said: Because if I did, they would have put me in prison. Because in Richmond they were absolute in the prosecution of the law. So he chose another weapon to intimidate the operator of a 7-Eleven store.

Does the law work? You bet it works if it is enforced. We are finding out all new kinds of things about terrorists, and the reason we are tragically finding them out is because we were lax in our country. Gun shows are not the chosen venue by which the terrorist element acquires lethalness, and we know that to be a fact. We know less than 1 percent, or around that figure, of firearms that might be sold at gun shows somehow find their way into criminal activity. Oh, and that is a reason to set up a whole new Federal bureaucracy, a brand new hurdle over which we ask the law-biding citizens to adhere? I think

The wonderful thing about law-abiding citizens is they obey the law. Sometimes they are very frustrated by it, but they obey the law. Thank goodness most of the citizens in our country believe so strongly in obeying the law.

All of the examples, I believe, Senator Reed has given and the reason he can report on them is because the examples are of people who broke the law, were apprehended by the law, and did the time or were convicted and are serving time. That is the reality of what we are about.

I am one of the coauthors of the NICS Instant Background Check System, and I am going to push to get it as accurate as we possibly can, and we ought to apply that to all federally licensed firearm commerce. But to suggest to the individual, whether they are inside the gun show or outside the gun show, that if you are not in the business of selling a firearm, you, too, must comply, I don't think that is the case. I hope my colleagues will agree with me.

May I ask how much time is remaining?


Mr. CRAIG. Madam President, I thank the Senator from Texas for what I think is a very sensible and responsible amendment as he proposed it. I wish it could become part of S. 1805. It will not have that opportunity at this time. I do believe in protecting law-abiding citizens and not allowing our Federal Government to develop a paper trail of the kind that has no value other than to know what a private law-abiding citizen may own in relation to a firearm.

These records ought to be destroyed, as the Senator clearly spelled out, in a 24-hour period. That is what is important about it. We are not going to be able to get to this particular segment of the issue at this time. I hope we will have the opportunity to do so.

I yield back the remainder of my time.


Mr. CRAIG. Madam President, I understand Senator Sessions will be to the floor momentarily to join with me in debating the Bingaman amendment. But for the moment let me suggest that the Bingaman amendment would modify very clearly the definition of "reasonably foreseeable" in product defect cases in such a way that would undermine, clearly, the purpose of S. 1805 and undo the Daschle amendment, the very corrections that the minority leader thought were necessary to be made and to which I and others agreed.

Rather than leave criminal and unlawful misuse out of the definition of reasonably foreseeable use, like S. 1805 and the Daschle amendment, the amendment of Senator Bingaman would define the term "reasonably foreseeable" in product defect cases to mean the reasonable anticipation that harm or injury is likely to result.

S. 1805 exempts product defect cases from qualified civil liability actions. The bill, in other words, allows actions for physical injuries or property damage resulting directly from a defect in design or manufacture of the product when the product is used as intended or in a manner that is reasonably foreseeable. As it relates to product defect cases, the term "reasonably foreseeable" does not include any criminal or unlawful misuse of a qualified product, other than possessory offenses.

The Daschle amendment simply made a technical change by including this definition of reasonably foreseeable in the section on product defect cases.

In other words, current product liability law still pertains. S. 1805 does not erase this. The substance, however, remains the same as I have said. That is, both S. 1805 and the Daschle amendment make clear that criminal and unlawful misuse of a qualified product is not included in use that is reasonably foreseeable.

Tort law has long recognized the principle that criminal acts and others are not foreseeable, that a person can generally assume others will obey the law. As one authoritative treatise stated:

There is normally much less reason to anticipate acts on the part of others which are those which are merely negligent, and this is all the more true where, as is usually the case, such acts are criminal.

Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed under the assumption that others will obey the criminal law.

A Maryland court, in the case of Valentine v. On Target, quoted this when it ruled that a victim of a criminal shooting could not sue a gunshop for a murder committed by a gun stolen from the dealer's display case.

Again, here, as in product defect cases, the criminal and unlawful misuse of a product is not included in the definition of reasonably foreseeable.

Senator Bingaman's amendment, by including this language, would strike these longstanding principles of tort law and, as lawmakers, it is important to recognize these principles of law in S. 1805, and that is exactly what we do. Although the legislation does not prohibit reasonable suit in product defect cases where a firearm or ammunition is used in a reasonably foreseeable manner, there is also no open door for antigun activist lawyers to claim that firearms are defective products just because they can be used in crime. For this reason I certainly urge that my colleagues oppose the Bingaman amendment. In fact, it strikes to the very heart of that which Senator Daschle and I proposed in a very bipartisan way, to make this
legislation as broadly acceptable as it is.

The case that the Senator is referring to, no matter how sympathetic, still involves a violation of the law for something such as negligent homicide or the negligent handling of a weapon. Again, criminal or unlawful behavior is not foreseeable. This is established in longstanding principles of tort law, as I said, and here, in product defect cases, these principles similarly apply.

The Senator's amendment again would strike language, as I said, from S. 1805, that clearly restates what we believe to be current law and an important part of the law.

The practical effect of this definition is that it would bar many valid product liability suits involving accidental shootings.

For example, in Smith v. Bryco, as he mentioned, a 15-year-old unintentionally shot his friend when he pulled the trigger of an illegally purchased handgun after removing the magazine. He thought the gun would not fire without the magazine and did not realize that a bullet may remain in the chamber. His parents sued the manufacturer under strict product liability and negligence theories asserting that the handgun should have incorporated a warning, chamber-loading indicator, or a magazine-out safety. Under S. 1805, cases like this one would likely be dismissed because they involve some violation of law-certainly in this case-other than a possessory offense such as negligent homicide, negligent handling of a weapon, or similar offense.

Those are the fundamental issues. I certainly urge my colleagues to oppose the Bingaman amendment.

We will vote on this amendment at 5 o'clock. I hope others might come to the floor for purposes of debate on this amendment.

I see Senator Sessions entering the Chamber now and he wished time on this important amendment.

Let me also repeat that clearly part of the Bingaman amendment goes to the very heart of the definition as it relates to "reasonably foreseeable" in the law. We think that is critically important. That is why Senator Daschle and I teamed to make sure this law was, as I expressed it to be on Wednesday and Thursday and Friday of last week, a very narrow approach toward dealing with the kinds of junk or frivolous lawsuits we have seen filed now well over 30 times across this country in which law-abiding gun manufacturers and dealers have spent hundreds of millions of dollars defending themselves, only to have, in most instances, these cases thrown out of court. We would hope as they enter the courthouse door and the arguments are placed that the judge, based on S. 1805, can make reasonable decisions as to whether this case ought to go forward or whether it meets the definition of what we are proposing.

May I inquire how much time remains?


Mr. CRAIG. I thank the Chair.

Let me say I don't question the sincerity or the desire with which the Senator from New Mexico comes to the floor to offer his amendment. I must tell you I think he is rewriting current law to fit a situation in his State, or attempting to do so. What we have always said here is individuals are responsible for their acts, not a third party or, in this case, the third party is responsible and not the gun manufacturer. It is my understanding all three of these young people were minors; they acquired the gun off the street. You have heard the Senator from Alabama talk about the knowledge of handling a firearm and the tragic mistake some make when they assume it is empty. Any of us who have ever taken a course in firearms knows that, first and foremost, that is the one assumption you never make. That gun has to be presumed to be loaded until you yourself establish by visual contact it is not.

The Bingaman amendment would modify the definition of reasonably foreseeable in product defect cases in such a way it would undermine clearly the purpose of S. 1805 and undo the Daschle amendment we worked in compromise and balance to bring. Rather than leave criminal and unlawful misuse out of the definition of reasonably foreseeable use, like S. 1805 and the Daschle amendment does, the Bingaman amendment would define the term reasonably foreseeable in product defect cases to mean the reasonable anticipation that harm or injury is likely to result.

We don't think that is how this argument ought to be approached. Again, there is this great desire in our country that somehow the individual cannot be held responsible, that somehow it was somebody else's fault. The case the Senator speaks of is, without question, tragic. That I don't dispute, and my heart goes out to the families in those kinds of incidents, where young people become involved in the misuse of a firearm and it takes someone's life or injures them. We hope that does not happen.

Again, we have to go back to the underlying principle of responsibility, and in the case of well and long-established court law, it is the individual who is responsible, and if their act causes injury, they are responsible. Certainly, that is the intent and the very narrow character of S. 1805.

There are lawsuits filed for the purpose of changing public policy in our country or simply, if you will, draining down the resources of a company that someone believes should not be in business, even though historically we have said that is a law-abiding, responsible business to be in in our country. In this case, it is a business that was spoken to by our Founding Fathers in the second amendment.

We think those who play by the Federal rules, whether they be a manufacturer or a dealer, ought to be exempt from these kinds of lawsuits, unless under product liability and other law they clearly are in violation. But the third party is the one who takes the action, causes the crime that is the criminal act. Why do we want to reach back through the courts and go after the law-abiding individual or company? That is the issue at hand. I know the Senator speaks to a specific version of that, but at the same time that is the reality with which we deal here.

I hope my colleagues, when we vote at 5 or soon after that, will object to the Bingaman amendment in support of a clean S. 1805.

I yield back the remainder of my time.

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