35. Protection

October 20, 2005

Hall of the House of Representatives — United States Capitol Building

“Here we go again,” a congressman representing North Carolina announced. He was the chairman of the Subcommittee on Commercial and Administrative Law, and he was in a sour mood, because the Protection of Lawful Commerce in Arms Act — the legislation that would raise the NSSF’s coveted liability shield — was back before the House:

Another year of trying to close the courthouse doors to innocent victims of preventable violence of any kind. Another year of radically altering and undermining our system of States’ rights, which so many on this Committee have given so much and so much energy to saying that they support. Another year of trying to confer sweeping immunity to a single industry, the gun industry, in this case. Here we go again. Here we go again.

The PLCAA had already passed the Senate in July of 2005 by a vote of 65-31, and all that lay in the path to the president’s signature now was approval by the House of Representatives.

Turning to the gun industry’s manufacturer/dealer relationship (set to gain “unprecedented protection” under the proposed bill), the veteran congressman re-dismissed the gun-rights arguments he remembered from 2003. “[They] didn’t reveal to me any reason why individuals harmed by guns that were recklessly placed in the stream of commerce should not be allowed to seek a remedy from those responsible,” the congressman said — especially at a point when “the number of deaths and injuries from gun violence and accidental shootings has escalated. Under this bill, no one within the gun industry bears any responsibility, no duty of care for the misuse of dangerous weapons.”

For America’s firearms companies, the country’s legislative environment had changed significantly in just one year. The sun had set on the Federal Assault Weapons Ban of 1994, and so there was no longer any poison amendment for a stubborn California senator to deploy; the wave that had been sent out from Stockton in 1989 had finally broken, and rolled back out. It didn’t hurt, either, that 2005 would not be an election year for the president. If the act was going to pass, it was going to be now.

The debate became distilled into a familiar question: if the shield law had been in effect then, would the D.C. Sniper victims have been blocked from suing Bushmaster, and the gun store in Tacoma?

A representative from a Maryland district — the same where several constituents had taken sniper fire while trying to put gas in their car just a few years prior — said that the PLCAA would have done to the snipers’ victims exactly what they all feared; that, “The consequences of this bill would be making them victims twice. It would be to deny the families of the victims their day in court with respect to civil damages.”

A representative from Washington State then took the floor, to weigh in on his own state’s connection to the sniper attacks:

The gun that was used in those crimes was actually purchased in my district, or actually, I should say, came from a store in my district. It is still unclear how that got to be in the person’s possession because the gun shop has no records. They have records that they had the guns and then, oops, they’re gone. They have no records of how it actually got to be in somebody else’s hands or even out of their store, for that matter. […] I do not want to exclude that company from liability when they had some number of guns that just went unaccountably missing. That is negligence, to my mind, depending on the facts. It’s at least a case for the jury, let’s put it that way.

Seeking to ensure that a party in his state could still be sued, he asked again if the bill would have blocked the Bushmaster lawsuit, and — showing that he had been paying close attention to the proceedings in prior sessions — added, “I suspect that I’ll get about five different contradictory answers.”

During testimony, a representative from the Brady Campaign pointed out that the Bushmaster case they were debating was a prime example of why the manufacturers and their advocates like the NSSF were exaggerating the toll of the lawsuits in the first place. “Consider the outcome,” the Brady rep said. “The sniper victims received justice. Bull’s Eye and Bushmaster were made accountable for their shoddy business practices. And, again, no one declared bankruptcy.”

Some in the Senate had tried to amend the PLCAA, to clear up some of the ambiguity over what cases the shield would, and would not, block from going to trial. One such amendment was to make an exception for cases of a child being harmed with a gun, whether in an accidental shooting or a school shooting. It was brought to the floor on April 20, 2005, an anniversary that was not lost on the amendment’s sponsor, who compared the position of gun manufacturers to that of drug manufacturers, when it came to potentially-dangerous products spreading, and harming minors:

Now we want to be able to immunize [the gun industry] for the proliferation of guns in the hands of not only criminals but in the results of that: the use of the guns by those who may not start out to be criminals. We want to make immune drug manufacturers who recklessly manufacture without safety precautions, and, not [be] concerned about where guns wind up.

My amendment is simple…. That parents of minors have the right to sue for civil damages when a minor under age of 18 is injured or killed by a gun. In this instance, this legislation seeks to give a cover of innocence to gun manufacturers, on the very day of the tragedy of Columbine — where these were not [convicted] criminals who took up these guns, but their acts resulted in criminal activity, because of the proliferation of guns and the lack of safety procedures with these guns.

A leading supporter of the PLCAA, a representative from Utah, argued back: “I encourage the members of the committee to vote against this amendment because the age of a victim of a crime should not and does not affect the moral responsibility of the person that pulled the trigger. It should be the person that pulled the trigger who is held responsible regardless of the age of the victim.”

The representative from Utah had the votes, and the amendment was defeated. It wasn’t the only one.

There was a motion to amend the shield law to permit lawsuits in any state that had not provided to the Attorney General “at least 90% of records needed to conduct a criminal background check” for firearms purchases. It failed.

There was a motion to permit law enforcement officers to bring civil lawsuits in cases where a police officer was shot. It failed.

There was a motion to permit lawsuits “when the seller knows that the name of the person who bought the gun appears in the Violent Gang and Terrorist Organization File” — also known as the “terrorist watch list.” It failed.

Finally, there was an amendment proposed that “allows the victims of domestic violence to sue gun dealers for illegal firearm sales to persons with domestic violence convictions.” The amendment’s sponsor, another representative from California, made a statement:

I ask that everyone on the opposite side of the aisle who might oppose this amendment to imagine your daughter, your niece, or a female friend shot by a gun illegally sold to someone with a history of domestic violence. Then imagine having to tell them that they can’t seek civil damages for their injuries from the person who made the criminal gun sale.

The representative from Utah argued back again. “Let me just tell you what my view of right and fair is,” he said. “Right and fair is when your wife or your daughter is not attacked because the rapist stalking her fears that she might have an inexpensive and accurate firearm. I oppose this amendment, I urge the members of the committee to also oppose it.” He won again. It failed.

At one point in the judiciary committee, a representative from Michigan, opposed to the shield law, observed that Congress had not bothered to comment on the Tyler, Texas shootout, among other multiple-shooting incidents involving “assault rifles” that year — issues which he believed “should take precedence over the one before us today, because they pose grave risk to human life.”

The representative from Texas, the same who eulogized Mark Wilson during a House session earlier that year, defended himself — “Congress did respond, at least this one did” — and then compared the attack to another in Texas history:

Because Texas has a concealed carry permit and the actions of Mark Wilson and the prompt response by law enforcement after Mark, we did not have another Luby’s like we had years before where nobody had a weapon when a crazy nut came in and started shooting wildly. Here, we had somebody and we had a citizenry and a law enforcement that were armed. They protected the public to minimize the damage that occurred there, and I thank God for Mark Wilson and law enforcement and for the laws that made that possible.

To the representative from the Tyler courthouse, Mark Wilson had been the manifestation of what Suzanna Gratia wished she could have done in 1991, and the shield law’s passage would be in that same spirit of dedication to firearms freedom. (Before he left the podium, he also corrected his colleague on the Norinco: “It was a semi-automatic weapon. It was not an assault rifle.”)

Just as they had heard from the Brady campaign, the committee also took testimony from the gun industry’s representatives. First, the Secretary and General Counsel of Sigarms, Inc. complained, “We have been fighting for our very survival against these lawsuits, diverting time, money, and other of our limited resources to defend ourselves.” Following Colt’s lead, he went on to portray the survival of Sigarms Inc. as vital to the nation’s security, reminding the committee that “SIG Sauer pistols are carried by many in combat, most notably the U.S. Navy Seals… these lawsuits have national defense and homeland security implications.”

It was near the end of the session when Larry Keane of the NSSF made his return. His remarks were a redoubling his efforts from 2003, predicting, “If the coercive effect resulting from the staggering cost to defend these cases forces manufacturers into a Hobson’s choice of capitulation or bankruptcy, [then the] anti-gun plaintiffs can implement their gun control policies through the entire nation.” He urged congress to pass the law.

On the 20th, the final vote came: yeas 283, nays 144, and 6 not voting. With that, the Protection of Lawful Commerce in Arms Act became law, and a mighty shield was raised.

October 26, 2005

Dwight D. Eisenhower Executive Office Building — Washington DC

In Room 350, in the office building next-door to the White House, President Bush sat before the final text of the act. He had already released an official statement, upon hearing the news of its passage, which was in stark contrast to his silence when signing Texas’s version of the law in 1999:

I commend the House for passing the ‘Protection of Lawful Commerce in Arms Act.’ Our laws should punish criminals who use guns to commit crimes, not law-abiding manufacturers of lawful products. This legislation will further our efforts to stem frivolous lawsuits, which cause a logjam in America’s courts, harm America’s small businesses, and benefit a handful of lawyers at the expense of victims and consumers.

As he signed his name to the new law, he was surrounded by the men who had been its architects, with Larry Keane and reps from the NSSF and Heritage Fund front-and-center. Standing shoulder-to-shoulder with them, and beaming with pride, was Wayne LaPierre of the NRA. Their alliance, and years of hard work, had led to a triumphant, final victory. The war was over.