[Congressional Record Volume 145, Number 46 (Tuesday, March 23, 1999)]
[Senate]
[Pages S3135-S3138]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. BOXER (for herself, Mr. Chafee, Mr. Lautenberg, Mr. Reed, 
        Mr. Schumer, and Mr. Torricelli):
  S. 686. A bill to regulate interstate commerce by providing a Federal 
cause of action against firearms manufactures, dealers, and importers 
for the harm resulting from gun violence; to the Committee on the 
Judiciary.


        the firearms rights, responsibilities, and remedies act

  Mrs. BOXER. Mr. President, I rise today to introduce legislation to 
protect the rights and interests of local communities in suing the gun 
industry. I am joined in this effort by Senators Chafee, Lautenberg, 
Reed, Schumer, and Torricelli.
  Frankly, I would prefer not to have to introduce legislation at all. 
But, it has become necessary because the gun industry has begun a 
concerted campaign to gag America's cities. In order to preserve local 
control and options, federal legislation is needed. The federal 
government must stand alongside our local communities to fight the gun 
violence plaguing too many of America's cities.
  So far, five cities--New Orleans, Atlanta, Chicago, Miami-Dade 
County, and Bridgeport, Connecticut--have filed lawsuits against the 
gun industry. Many more are considering such lawsuits, including, in my 
State of California, San Francisco, Los Angeles, and Sacramento. These 
cities are suing because they are being invaded by guns.
  Consider the city of Chicago. Chicago has one of the toughest handgun 
control ordinances in the country. And yet, this year, the Chicago 
police will confiscate some 17,000 illegal weapons. City officials 
acknowledge that's only a fraction of the guns on the streets. And 
there are now 242 million guns in America. That's almost one for every 
man, woman, and child in this country.
  The result is that each year, guns cause the death of about 35,000 
Americans. The number of handgun murders in this country far outpaces 
that of any other country--indeed, most other countries combined. Japan 
and Great Britain have fewer than one murder by a handgun per one 
million population. Canada has about three and a half per million 
people. But in the United States, there are over 35 handgun murders per 
year for every million people.
  In my state of California alone, there are five times as many handgun 
murders as there are in New Zealand, Australia, Japan, Great Britain, 
Canada, and Germany combined. Yet those six countries together have ten 
times the population of California.

[[Page S3136]]

  Over 11 years, nearly 400,000 Americans have been killed by gunfire. 
Compare that with the 11 years of the Vietnam War, where over 58,000 
Americans died.
  If this continues, the Centers for Disease Control estimates that in 
just four years, gun deaths will be the leading cause of injury-related 
death in America.
  And for every American who dies, another three are injured and end up 
in an emergency room. The cost to our health care system is estimated 
to be between $1.5 billion and $4.5 billion per year. And 4 out of 
every 5 gunshot victims either have no health insurance or are on 
public assistance. U.S. News reported that one hospital in California--
the University of California-Davis Medical Center--lost $2.2 million 
over three years on gunshot victims. That means you and I and all 
taxpayers are paying the bills.
  That is why many cities want to sue. But, the NRA does not want to 
fight this in court. The gun industry wants to circumvent the legal 
process through special interest legislation--legislation imposed on 
our cities by big government.
  To preserve local control and individual rights, federal legislation 
is needed. Today, I am introducing such legislation, known as the 
Firearms Rights, Responsibilities, and Remedies Act. This bill would 
ensure that individuals and entities harmed by gun violence--including 
our cities--have the right to sue gun manufacturers, dealers, and 
importers.
  Specifically, my bill would create a federal cause of action--the 
right to sue--for harms resulting from gun violence. A gun 
manufacturer, dealer, or importer could be held liable if it ``knew or 
reasonably should have known'' that its design, manufacturing, 
marketing, importation, sales, or distribution practices would likely 
result in gun violence. But, this is not an open-ended proposition. The 
term ``gun violence'' is defined specifically as the unlawful use of a 
firearm or the unintentional discharge of a firearm. It would not be 
possible to sue for every gun sold--or even for all violence and deaths 
that result. A suit would only be possible if there is some negligence 
on the part of a manufacturer, dealer, or importer. I believe this 
language is broad enough to allow cities to pursue their claims, but 
not so broad as to open the floodgates for every gun-related death and 
injury.
  Suits could be brought in federal or state court by States, units of 
local government--such as cities, towns, and counties--individuals, 
organizations, and businesses who were injured by or incurred costs 
because of gun violence. A prevailing plaintiff could recover actual 
damages, punitive damages, and attorneys fees.
  I am not saying that the gun industry should be required to pay any 
particular amount of damages, and I am not advocating any particular 
theory that would hold the gun industry liable. What I am saying is 
that the gun industry should not be exempt from the normal course of 
business in America. The right to redress grievances in court is older 
than America itself--older than the Second Amendment to the 
Constitution. But the NRA is now pushing legislation in many states and 
here in Congress to say that the gun industry should get special rights 
and special protections. I believe that the gun industry should be 
treated like everyone else, and I believe that our cities should have 
their day in court.
  My bill does not impose anything. It does not require anything. It is 
designed for one purpose: to preserve local control. As Jim Hahn, the 
City Attorney of Los Angeles, noted in a letter to me endorsing my 
bill, what many States are considering would ``represent a significant 
intrusion in to the authority of local governments.'' And my bill 
would, in the words of Alex Penelas, the Mayor of Miami-Dade County, 
``preserve access to the courts for local governments and individual 
citizens.''
  Now, Mr. President, there have been questions raised about the 
constitutionality of this measure. It was not easy drafting a 
constitutional measure, but in working with Kathleen Sullivan, the Dean 
of Stanford Law School, and Larry Tribe of Harvard, I believe we have a 
bill that is constitutional.
  Finally, Mr. President, let me just note a bit of irony in this whole 
debate. Some of the legislation that the NRA has worked so hard to 
defeat over the years--such as mandatory safety locks, smart 
technology, and product safety legislation--is the basis of some of 
these suits by the cities. If the NRA had let us pass such laws, they 
wouldn't be facing so many lawsuits today. The NRA and the gun industry 
do not want to be regulated and then they do not want to be held 
accountable. The NRA and the gun industry want to escape their 
responsibilities for what they are doing to America's cities--and all 
too often, to America's children.
  I sometimes wonder if N-R-A stands for ``No Responsibility or 
Accountability.''
  It has been said that some Americans have a love affair with guns. 
But we should not stand idly by when that love affair turns violent. 
Today we stand with America's cities to say enough is enough.
  I ask unanimous consent that the bill and the letters from Mr. Hahn--
as well as other letters of support from the City Attorney of San 
Francisco, the Mayor of Bridgeport, Connecticut, a letter from Ms. 
Sullivan and Handgun Control--be inserted in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 686

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Firearms Rights, 
     Responsibilities, and Remedies Act of 1999''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the manufacture, distribution, and importation of 
     firearms is inherently commercial in nature;
       (2) firearms regularly move in interstate commerce;
       (3) firearms trafficking is so prevalent and widespread in 
     and among the States that it is usually impossible to 
     distinguish between intrastate trafficking and interstate 
     trafficking;
       (4) to the extent firearms trafficking is intrastate in 
     nature, it arises out of and is substantially connected with 
     a commercial transaction, which, when viewed in the 
     aggregate, substantially affects interstate commerce;
       (5) gun violence results in great costs to society, 
     including the costs of law enforcement, medical care, lost 
     productivity, and loss of life;
       (6) to the extent possible, the costs of gun violence 
     should be borne by those liable for them, including 
     manufacturers, dealers, and importers;
       (7) in any action to recover the costs associated with gun 
     violence to a particular entity or to a given community, it 
     is usually impossible to trace the portion of costs 
     attributable to intrastate versus interstate commerce;
       (8) the law governing the liability of manufacturers, 
     dealers, and importers for gun violence is evolving 
     inconsistently within and among the States, resulting in a 
     contradictory and uncertain regime that is inequitable and 
     that unduly burdens interstate commerce;
       (9) the inability to obtain adequate compensation for the 
     costs of gun violence results in a serious commercial 
     distortion to a single national market and a stable national 
     economy, thereby creating a barrier to interstate commerce;
       (10) it is an essential and appropriate role of the Federal 
     Government, under the Constitution of the United States, to 
     remove burdens and barriers to interstate commerce;
       (11) because the intrastate and interstate trafficking of 
     firearms are so commingled, full regulation of interstate 
     commerce requires the incidental regulation of intrastate 
     commerce; and
       (12) it is in the national interest and within the role of 
     the Federal Government to ensure that manufacturers, dealers, 
     and importers can be held liable under Federal law for gun 
     violence.
       (b) Purpose.--Based on the power of Congress in clause 3 of 
     section 8 of article I of the Constitution of the United 
     States, the purpose of this Act is to regulate interstate 
     commerce by--
       (1) regulating the commercial activity of firearms 
     trafficking;
       (2) protecting States, units of local government, 
     organizations, businesses, and other persons from the adverse 
     effects of interstate commerce in firearms;
       (3) establishing a uniform legal principle that 
     manufacturers, dealers, and importers can be held liable for 
     gun violence; and
       (4) creating greater fairness, rationality, and 
     predictability in the civil justice system.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Gun violence.--The term ``gun violence'' means any--
       (A) actual or threatened unlawful use of a firearm; and
       (B) unintentional discharge of a firearm.

[[Page S3137]]

       (2) Incorporated definitions.--The terms ``firearm'', 
     ``importer'', ``manufacturer'', and ``dealer'' have the 
     meanings given those terms in section 921 of title 18, United 
     States Code.
       (3) State.--The term ``State'' means each of the several 
     States of the United States, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
     American Samoa, and the Commonwealth of the Northern Mariana 
     Islands.
       (4) Unit of local government.--The term ``unit of local 
     government'' means any city, town, township, county, parish, 
     village, or other general purpose political subdivision of a 
     State.

     SEC. 4. FEDERAL CAUSE OF ACTION.

       (a) In General.--Notwithstanding any other provision of 
     Federal, State, or local law, a State, unit of local 
     government, organization, business, or other person that has 
     been injured by or incurred costs as a result of gun violence 
     may bring a civil action in a Federal or State court of 
     original jurisdiction against a manufacturer, dealer, or 
     importer who knew or reasonably should have known that its 
     design, manufacturing, marketing, importation, sales, or 
     distribution practices would likely result in gun violence.
       (b) Remedies.--In an action under subsection (a), the court 
     may award appropriate relief, including--
       (1) actual damages;
       (2) punitive damages;
       (3) reasonable attorneys' fees and other litigation costs 
     reasonably incurred, including the costs of expert witnesses; 
     and
       (4) such other relief as the court determines to be 
     appropriate.
                                  ____



                                          City of Los Angeles,

                                                   March 22, 1999.
     Hon. Barbara Boxer,
     U.S. Senate, Washington, DC.
       Dear Barbara: I write to express my strong support for the 
     Firearms Rights, Responsibilities, and Remedies Act which 
     will assure the ability of local governments to sue the gun 
     industry by creating a federal cause of action for claims 
     brought against the gun industry. In so doing, the act is 
     critical to the goal of making the gun industry accountable 
     for the toll of gun violence on cities nationwide.
       The City of Los Angeles is exploring litigation against the 
     gun industry in order to recoup the City's costs in 
     addressing gun violence. Therefore, any attempt on the state 
     level to preclude local gun lawsuits would subvert cities and 
     counties' efforts in this regard and would also represent a 
     significant intrusion in to the authority of local 
     governments. The creation of a federal cause of action is 
     invaluable to guaranteeing that litigation remains available 
     to cities and counties.
       The Firearms Rights, Responsibilities, and Remedies Act 
     represents a common-sense and reasonable approach to any 
     attempt to bar gun lawsuits by cities and counties. I am 
     pleased to offer my support for this important legislation.
           Very truly yours,
                                                    James K. Hahn,
     City Attorney.
                                  ____



                                          Office of the Mayor,

                            Miami-Dade County, FL, March 23, 1999.
     Hon. Barbara Boxer,
     U.S. Senator, Washington, DC.
       Dear Senator Boxer: Thank you for your invitation to join 
     you today in Washington, DC, as you announce legislation 
     which will assist local governments, like Miami-Dade County, 
     on our legal efforts to compel the gun industry to 
     manufacture childproof guns. I regret that I am unable to 
     join you personally to offer my support and gratitude for 
     your efforts. Unfortunately, County business requires me to 
     be in our State Capitol today.
       On January 21, 1999, Miami-Dade County filed a lawsuit 
     against the gun industry seeking to compel gun manufacturers 
     to make safer, childproof guns. To achieve our objective we 
     are hitting the gun industry where it hurts--in their 
     wallets. Every year, gun violence and accidental deaths costs 
     our community hundreds of millions of dollars. Until now, 
     taxpayers have borne the responsibility for many of these 
     costs while the gun industry has washed its hands of the 
     blood of countless victims, including many children and 
     youths. However, our efforts are not about money. In fact, if 
     the gun industry agrees to make childproof guns, install load 
     indicators on guns and change its marketing practices my 
     community will crop its lawsuit.
       As you know, legislation has been filed in the Florida 
     Legislature that would not only preempt Miami-Dade County's 
     lawsuit, but would also make it a felony for any public 
     official to pursue such litigation. This NRA sponsored 
     legislation is undemocratic and hypocritical. If passed, 
     preemption legislation will effectively slam shut the doors 
     of justice and trample on the People's right to access the 
     judiciary in the name of defending the Second Amendment. 
     Additionally, while some Tallahassee and Washington 
     legislators claim to favor returning power to local 
     governments, they are the first to support legislation which 
     takes away our right to access an independent branch of 
     government.
       Clearly, the gun lobby is out of touch with the will of the 
     people. Flordia voters, like Americans nationwide, have 
     repeatedly sent a strong message that they favor commonsense 
     gun safety measures. For example:
       In 1991, Florida voters overwhelmingly supported requiring 
     criminal background checks and waiting periods on gun sales;
       Last November, 72% of Floridians voted to close the Gunshow 
     Loophole, by extending criminal background check and waiting 
     period requirements to gunshows and flea markets;
       Just last month a New York jury found the gun industry 
     civilly liable for saturating the market with guns.
       Unfortunately, our prospects for success in defeating this 
     misguided state legislation are dim. However, I am confident 
     that the pressure on the gun industry to reform increase with 
     each passing day. Your legislation will add additional 
     pressure by sending a message to the gun lobby that they 
     cannot block access to the courts by strong-arming state 
     legislatures.
       If successful, your legislation will preserve access to the 
     courts for local governments and individual citizens who are 
     demanding that the gun industry be held accountable for 
     callously favoring corporate profits over our children's 
     safety. I commend you for putting the public's interest ahead 
     of the powerful special interests that seek only to protect a 
     negligent industry that has ignored commonsense pleas to make 
     childproof guns. Be assured I stand ready to assist you in 
     advancing this significant legislation.
           Sincerely,
                                                     Alex Penelas,
     Mayor.
                                  ____



                                  Office of the City Attorney,

                                San Francisco, CA, March 22, 1999.
     Re: Proposed legislation

     Senator Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: I write to endorse your proposed 
     legislation that will allow local governments to sue gun 
     manufacturers, dealers, and importers. Each year in San 
     Francisco we admit numerous gunshot victims to our hospitals 
     with staggering costs to the general public. Sadly enough, 
     all too often these victims are children and young people. 
     The gun industry must be held responsible for its role in the 
     emotional and financial distress caused to anyone affected by 
     gun violence--including local government.
       Your legislation would ensure that the normal legal 
     processes can be brought to bear upon a significant public 
     problem and that the gun industry would not be exempt from 
     the usual course of business in America. For these reasons, I 
     support your proposed legislation and commend you for your 
     ongoing efforts to stand with America's cities and its 
     people.
           Sincerely,
                                                  Louise H. Renne,
     City Attorney.
                                  ____

                                             Bridgeport City Hall,


                                        Mayor Joseph P. Ganim,

                                   Bridgeport, CT, March 23, 1999.

                     Ganim Supports Boxer Gun Bill

     The following is Bridgeport Mayor Joseph P. Ganim's statement 
         of support for Sen. Barbara Boxer's proposed federal 
         legislation:

       I am in full support of the legislation drafted by Sen. 
     Boxer to allow people, groups or governments to exercise 
     their constitutional rights to seek redress through the 
     courts, I regret that I am not able to be in Washington as 
     the Senator makes this important announcement.
       Bridgeport is one of five cities across the nation to file 
     a lawsuit against handgun manufacturers. We are seeking 
     damages to help lessen the financial burden Bridgeport must 
     carry due to the effects of gun violence in our City.
       A handgun is the most dangerous weapon placed into the 
     stream of commerce in the United States. Surprisingly, there 
     are more safety requirements and regulations regarding the 
     manufacture of toy guns than for real handguns.
       Sen. Boxer's bill will allow cities, states and individuals 
     to seek retribution for the economic strain that handgun 
     violence has caused. We are facing high medical and public 
     safety costs, but we are also battling drops in property 
     value in areas where handgun violence is most prevalent.
       Because of measures taken by the Georgia State Legislature 
     and attempts by Rep. Bob Barr of Georgia in the U.S. 
     Congress, Sen. Boxer's bill becomes even more critical and 
     its passage even more important. This bill ensures that 
     everyone will have the right to fight back and hold the gun 
     manufacturers accountable for the damage their products have 
     caused.
                                  ____



                                          Stanford Law School,

                                     Stanford, CA, March 23, 1999.
     Senator Barbara Boxer,
     U.S. Senate,
     Washington, DC.
       Dear Senator Boxer: You have asked me to review a draft of 
     a bill to enact the Firearms Rights, Responsibilities, and 
     Remedies Act of 1999, and to comment briefly upon its 
     constitutionality. I am happy to do so, with the caveat that 
     I am not in a position to comment upon the bill as a matter 
     of tort or product liability policy.
       The bill appears to me to be within the authority of 
     Congress to enact under the interstate commerce power set 
     forth in the United States constitution, Article I, section 
     8. While the commerce power is not an unlimited one, Congress 
     is empowered to regulate both the flow of interstate commerce

[[Page S3138]]

     and any intrastate activity that substantially affects 
     interstate commerce. United States v. Lopez, 514 U.S. 549 
     (1995). While one might fairly question whether any incident 
     of gun violence in and of itself constitutes an activity 
     substantially affecting interstate commerce, the bill does 
     not regulate gun violence but rather provides a federal cause 
     of action against the negligent ``design, manufacturing, 
     marketing, importation, sales, or distribution'' of guns. 
     Sec. 4(a). The ``design, manufacturing, marketing, 
     importation, sales, or distribution'' of guns plainly amounts 
     to economic activity that in the aggregate may in Congress's 
     reasonable judgment substantially affect interstate commerce. 
     Moreover, providing a uniform federal avenue of redress for 
     gun violence may in Congress's reasonable judgment help to 
     avert the diversion and distortion of interstate commerce 
     that, in the aggregate, accompanies any patchwork of separate 
     state regulations of firearm sales. Congress is entitled to 
     consider the interstate efforts of commercial gun 
     distribution in the aggregate without regard to whether any 
     particular gun sale that might be the subject of a civil 
     action is interstate or intrastate in nature. See, e.g., 
     Wickard v. Filburn, 317 U.S. 111 (1942) (regulation of home-
     grown wheat consumption); Perez, v. United States, 402 U.S. 
     146 (1971) (regulation of extortionate intrastate loan 
     transactions).
       Nor does the bill appear to intrude upon state sovereignty 
     or the structural principles of federalism that are reflected 
     in the United States Constitution, Amendment X. To be sure, 
     one effect of the bill if enacted would be to allow cities or 
     other local governments to sue for damages incurred as a 
     result of gun violence, even if they are located in states 
     that had sought, through state legislation, to bar such city-
     initiated lawsuits. But Congress remains free even within our 
     federal system to regulate state and local governments under 
     laws of general applicability, see Garcia v. San Antonio 
     Metropolitan Transit Authority, 469 U.S. 528 (1985), and the 
     proposed bill does just that. Rather than singling out state 
     or city governments for special advantage or disadvantage, 
     the bill simply confers upon states and cities the same civil 
     litigation rights as it does upon any other ``organization, 
     business, or other person that has been injured by or 
     incurred costs as a result of gun violence.'' Sec. 4(a). 
     Moreover, the proposed bill does not in any way 
     ``commandeer'' the legislative or executive processes of 
     state government in a way that might offend principles of 
     federalism. See Printz v. United States, 117 S. Ct. 2365 
     (1997); New York v. United States, 505 U.S. 144 (1992). It 
     does not require that any state adopt any federally authored 
     law, but instead simply provides federal rights directly to 
     individuals and entitites including but not limited to states 
     and cities. To the extent that the proposed bill would permit 
     civil actions to be brought in state as well as federal 
     forums, it is entirely consistent with Congress's 
     longstanding power to pass laws enforceable in state courts, 
     see Testa v. Katt, 330 U.S. 386 (1947), a power that neither 
     the Printz nor New York cases purported to disturb.
       I hope these brief remarks are helpful in your 
     deliberations.
           Very Truly yours,
     Kathleen M. Sullivan.
                                  ____



                                         Handgun Control Inc.,

                                   Washington, DC, March 23, 1999.
     Hon. Barbara Boxer,
     U.S. Senate, Washington, DC.
       Dear Senator Boxer: On behalf of Handgun Control, I want to 
     commend you for your continued leadership on gun violence 
     prevention issues and to lend our support to the Frearms 
     Rights, Responsibilities and Remedies Act of 1999.
       Access to the courts is one of the most fundamental rights 
     accorded our citizens and our communities. The legislation 
     that is being introduced today will protect the right of 
     cities and counties to seek redress in the courts for the gun 
     violence that afflicts so many communities. Cities, like the 
     citizens they represent, should be able to seek compensation 
     for the damages that arise from the negligence or misconduct 
     of the gun industry in the design, manufacture, sale and 
     distribution of their product.
       The gun lobby, of course, believes that manufacturers 
     deserve special protection, that cities and counties should 
     be legally prohibited from suing manufacturers so long as 
     they don't knowingly and directly sell guns to convicted 
     felons and other prohibited purchasers. Such a grant of 
     immunity is not only unprecedented, it is wrong. The 
     manufacture of firearms is not subject to consumer 
     regulation. In fact, the Consumer Product Safety Commission 
     is prohibited by law from overseeing the manufacture of guns. 
     As an unregulated industry, gun manufacturers produce guns 
     that all too often discharge when they are dropped. They 
     design guns with a trigger resistance so low that a two-year 
     old child can pull the trigger. Many guns lack essential 
     safety features like a safety, a load indicator or a magazine 
     disconnect safety. And, even though the technology for making 
     guns unusable by children and strangers is readily available, 
     virtually all guns are readily usable by unauthorized users. 
     Time and time again, the gun industry has ignored legitimate 
     concerns regarding consumer and public safety.
       But, at the urgent request of the gun lobby, one state has 
     already moved to prevent cities from filing complaints 
     against gun manufacturers and similar bills have been 
     introduced in at least ten states. A bill has even been 
     introduced in Congress that would bar cities from filing any 
     such action. Congress should move to ensure that the right of 
     cities to seek redress in the courts will be preserved. The 
     Firearms Rights, Responsibilities and Remedies Act of 1999 
     will do just that.
           Sincerely,
                                                      Sarah Brady,
                                                            Chair.
                                 ______