28. Shield

May 8, 2003

Lincoln Monument — Washington, D.C.

“As we dedicate ourselves to growing the hunting and shooting sports, we must also commit ourselves to preserving our firearms freedom.” Doug Painter, the President of the National Shooting Sports Foundation (after Bob Delfay had retired in 2000), was filming scenes for a video, one meant for gun industry companies that had contributed to the Heritage Fund. Pacing along the base of the columns fronting the Lincoln Monument, he told the camera, “This past year, the Heritage Fund focused its efforts and its resources in building support for critically important legislation: the Firearms Lawsuit Prevention Act.”

The video then cuts to images from the NSSF’s mailers. “We mounted a multi-million dollar print campaign to build grassroots support for this legislation,” Painter continues, as a depiction of the United State Capitol Building appears, overlaid with the text “Stop Lawsuit Abuse.” Next, there is a blindfolded figure of Justice holding her scales, with the 2nd Amendment on one side — and on the other, a rat wearing a suit (identified as a “TRIAL LAWYER” by the label on his briefcase). Painter then boasts that his team “reached many more millions through a special TV spot that aired nationwide on the outdoor TV networks.”

In that commercial, Painter’s message is tailored differently. He is now seated next to a campfire in the woods, and has shed his overcoat and slacks to dress in camouflaged hunting gear, a bolt-action rifle at his side:

When a criminal uses a gun in a crime, who’s at fault? Believe it or not, there are those who are trying to pin the blame on the companies who make firearms. Their goal: to sue America’s firearms industry out of business.

A backdoor attack on your firearm freedoms? You bet it is! To put an end to these junk lawsuits, contact your U.S. Senators and voice your support for Senate Bill 659!

The NSSF had been successful in fighting off the mayors in court, but here, in early 2003, they unveiled their legislative end-game: what Painter referred to as the Firearms Lawsuit Prevention Act, but what ultimately became known as the 2003 Protection of Lawful Commerce in Arms Act (PLCAA).

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The PLCAA was an ambitious effort, expanding the concept of Texas’s “shield law” to a national scale. Quite simply, the PLCAA would prohibit any civil lawsuit against any gun manufacturer (or distributor, dealer, or importer) for the harm caused by any unlawful misuse of a legally-sold gun, “when the product functioned as designed and intended.” The rule would take immediate effect, even on cases still at trial — the remaining municipal lawsuits would all disappear, and there would no more on the way to replace them.

Just then, as the NSSF’s shield law was making its way to the Senate floor, the capital region was suddenly gripped in terror by the unfolding “Beltway Sniper” case; when the ATF traced the Bushmaster from the blue Caprice’s trunk, it was even more bad news for the industry. Suddenly, it was not a good time for gun companies to try and shield themselves from all civil lawsuits. The bill’s supporters suddenly decided to hold back.

But by the next spring, the news headlines had mostly moved on, focusing more on the search for Weapons of Mass Destruction in Iraq. The supporters of the PLCAA decided it was time to make their move, and brought the bill to the floor.

Immediately, a representative from Illinois made the connection:

The families of the victims who were killed by the DC snipers believe the gun dealer should be held liable and accountable for its negligence in selling guns without keeping the records that are required. And the Senator from Rhode Island is telling me we are bringing a bill to the floor of the Senate to exempt the gun dealer who sold the weapon that killed these innocent people in the Washington, DC area from liability. Is that what this debate is all about?

The congressman who was sponsoring the shield law, a senator from Idaho, argued that the gun dealer in Tacoma still faced consequences for losing the murder weapon, since the ATF would still possess the power to shut them down due to their poor record keeping. The question was: should the victims be allowed to sue Bushmaster, just because a gun store lost track of a product the company had legally manufactured?

The PLCAA’s opposition tried to dilute the bill, in one instance attaching legislation that would require handgun manufacturers to include trigger locks with each gun they sold, just like the campaign President Bush had picked up from the NSSF’s Project Homesafe.

The senator from Idaho objected to his, highlighting the limitations of such safety measures:

Gun locks are designed to address what I believe is a narrow range of threats. At the same time, when a child’s life is lost, how tragic it is, and all of us understand that. Of course, then it makes tremendous news and the world wonders why this is happening. The reason it happens is because in many instances there was a parent who was less than responsible, who really didn’t lock that gun up.

At the same time, let’s also recognize the phenomenal complication involved. Sometimes guns are placed in locations in homes for security and for safety, and easy access is critically important if that gun is to be used for [that] purpose. At the same time, that does not deny the responsibility that is important. Gun locks address that narrow range of threats. Clearly, they will deter the casual curiosity of a small child far more readily than it will deter what I say is the committed thief, or the person bent on murder and mayhem.

Larry Keane, the Vice President of the NSSF, entered the Senate chamber on April 2, to help defend his shield law. Ahead of him in the list of speakers, he would have spotted an ally from Connecticut: the VP and general counsel for Colt Manufacturing Company.

The originators of the AR-15 — and its infamous cousin, the Sporter — were still emerging from the dark days of bankruptcy in 2003, the state having recently sold their interest in the company. The Colt executive argued at the hearing that, in light of the ongoing War on Terror, the anti-gun forces and their legal onslaught presented a threat not just to Colt’s balance sheets, but by extension, the security of the United States:

As I walk through our plant, Colt workers stop me to ask how the war is going, and we post announcements about the successes and battles that we are fighting, but the war that our workers are asking or reading about is not that war. It is the war we are fighting against these plaintiffs, spurred on by plaintiffs’ trial lawyers. […] We are dutifully helping to defend our country when attacked and in times of war. I ask that each of you help us in our time of war so that we can focus on making the best small arms available for our men and women in uniform.

When Larry Keane’s time before the microphone came due, the NSSF man chose to linger on the note struck by Colt, invoking the looming situation in Iraq as cause for the government to protect the gun industry. He asked the chamber, “If these companies are driven out of business, from whom will our military and law enforcement purchase their firearms?” Turning to the nuts and bolts of the bill, he continued, “It does not, as anti-gun interest groups have falsely alleged, close the courthouse doors to those that have been injured by firearms that have been illegally sold,” nor any of those injured with guns that were “supplied to one likely to use the firearm in a manner involving an unreasonable risk of injury.”

The NSSF knew that their bill would meet fierce resistance — including the “poison amendment” tactics that had inadvertently banned the Sporter in Connecticut. The Heritage Foundation had been plotting strategies around such a move, and President Bush himself had even released an official statement regarding the prospect, challenging the Senate to pass a “clean bill,” and warning that “any amendment that would delay enactment of the bill beyond this year is unacceptable.”

But a senator from California did it anyway.

She was no stranger to gun legislation, and in fact was more concerned with another gun law that year: the 1994 Assault Weapons Ban, which she had authored nearly ten years before. That piece of legislation had passed with a built-in “sunset provision,” after all, and the sand in the decade’s hourglass had almost run out. The Californian now spied one last opportunity to save the federal gun ban from expiring: she amended the pending shield law to include a renewal of her gun ban. The legislative arithmetic immediately changed.

In the ensuing debate, the opposition to the NSSF showed that they could exploit fears of terrorism just as adeptly as the gun lobby. One senator claimed, “A terrorist training manual discovered by American soldiers in Afghanistan in 2001 advised Al Qaeda operatives to buy assault weapons in the United States and use them against us,” which he cited as evidence that “terrorists are bent on exploiting weaknesses in our gun laws.” A robust defense against terrorists, then, would actually impel more restrictions on gun companies, contrary to what those same companies were telling the people.

The strategy of those seeking to restrain gun rights immediately proved effective. The until-then-supporters of the PLCAA balked at the poison amendment, and turned against their own bill. Senators up for election that year were suddenly checking their Blackberry smartphones, which lit up in unison with a warning from none other than Wayne LaPierre, and the NRA: they were to reject the now-compromised bill, or else they could expect to see their vote accounted for “in our future evaluations and endorsements of candidates.” As all the senators well-knew, such candidate ratings were the NRA’s true source of power; many of them would not have been in office without theirs.

The Protection of Lawful Commerce in Arms act died in the Senate, losing a vote of 90-8.

Larry Keane headed back home to Newtown — defeated, but not surrendered. The NSSF’s Heritage Fund would live on, and as soon as he landed, his organization would set about planning their next moves.

May 15, 2003

Bushmaster Headquarters — Windham, Maine

The one manufacturer receiving the most time in the spotlight over gun liability, meanwhile, was openly indifferent about renewing the now-attached Assault Weapons Ban. A reporter from the Associated Press visited Bushmaster’s plant in Windham, and learned that their sales had actually “increased 900 percent” during the nine years since Clinton’s ban had gone into effect.

Bushmaster’s strategy had been the same that Colt employed when they designed the Sporter. “Basically, what we did was going forward, we eliminated all those items that made it a banned firearm,” said Bushmaster’s VP of Administration. “We adjusted our business, as to what was allowed and what wasn’t allowed, and we’ve grown since then.”

The changes they made to their AR-15, he went on to say, were merely cosmetic, and didn’t have any impact at all on the weapon’s performance. The company employed the same strategy in states like Connecticut, which had their own features-based assault weapons ban, and it hadn’t hurt sales there one bit. “From our point of view,” Bushmaster’s VP concluded of the federal law, “extending the ban is probably okay.”