[Congressional Record Volume 145, Number 63 (Tuesday, May 4, 1999)]
[Senate]
[Pages S4675-S4676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SMITH of New Hampshire:
  S. 954. A bill to amend title 18, United States Code, to protect 
citizens' rights under the second amendment to obtain firearms for 
legal use, and for other purposes; to the Committee on the Judiciary.


               Second Amendment Preservation Act of 1999

  Mr. SMITH of New Hampshire. Mr. President, I rise today to introduce 
the Second Amendment Preservation Act of 1999.
  Mr. President, my bill is intended to address the lawsuits that have 
been filed by various municipal governments against firearms 
manufacturers. These lawsuits are premised on the novel theory that 
manufacturers in full compliance with all of the laws governing the 
production of their products can nevertheless be held liable for the 
criminal misuse of those products by individuals who are completely 
beyond their control. This radical notion is flatly contrary to the 
principle of individual responsibility on which the tort laws of our 
Nation are based.
  In at least some cases, Mr. President, these lawsuits seem to be 
intended to subject firearms manufacturers, importers and dealers to 
legal costs that are so onerous that they may not be able to defend 
themselves, or indeed be able to remain in business. A majority of 
firearms manufacturers, importers and dealers are small, privately-
owned businesses that cannot afford to bear the legal costs of 
defending themselves in a large number of judicial forums. Moreover, 
compared to most firearms manufacturers, importers and dealers, States 
and local governments are large and relatively wealthy entities that 
are able to spend large amounts of taxpayers' dollars on wars of 
attrition against small business.
  Mr. President, these lawsuits represent an effort by social activists 
and trial lawyers to use the Nation's judiciary to secure victories 
against the firearms industry that they never would be able to achieve 
through the legislative process. In fact, the firearms industry won't 
be the last target of these lawsuits. In a January 31, 1999, article in 
the Washington Post, plaintiffs' attorney John Coale stated ``. . . we 
are interested in taking a close look at the exorbitant prices of 
prescription drugs for the elderly, for example.'' ``Unless the courts 
reject our approach,'' Coale continued, ``we will continue to utilize 
it to tackle industry bullies.''
  Thankfully, Mr. President, the public is not fooled. A December, 
1998, survey of 1,008 U.S. adults by DecisionQuest, a jury consulting 
firm, found that 66.2% of American adults oppose these lawsuits against 
firearms manufacturers. Only 19.3% of Americans believe that these 
suits are justified.
  Even some anti-gun elements of the media oppose these lawsuits. A 
March 1, 1999, editorial in the Boston Globe stated that ``. . . guns 
should be controlled by the legislative process rather than through 
litigation.'' ``gun makers may be responsible for flaws in their 
products that lead to injury or death,'' the editorial continued. 
``Making manufacturers liable for the actions of others,'' the 
editorial concluded, ``. . . stretches the boundaries beyond reasonable 
limits . . . .''
  Mr. President, I believe that fairness requires that a unit of 
government that undertakes an unsuccessful ``fishing expedition'' 
against a firearms manufacturer, importer or dealer should bear the 
costs of that business in defending itself against such an frivolous 
and unwarranted civil action. Fairness also requires that taxpayers not 
be required to pay millions of dollars to wealthy attorneys, out of

[[Page S4676]]

awards that are intended, at least in part, to benefit the victims of 
crime.
  The second amendment to the Constitution of the United States 
requires that Congress must respond to actions that are intended to, 
and that would have the effect of, nullifying that provision of the 
Bill of Rights. Congress has the power under the second amendment, and 
under the Commerce Clause, to take appropriate action to protect the 
rights of citizens to obtain and own firearms.
  Onr action that Congress may take, Mr. President, is to provide 
protection from excessive and unwarranted legal fees. The Second 
Amendment Preservation Act, which I am introducing today, provides that 
protection. My bill limits attorneys' fees to plaintiffs in civil 
lawsuits that seek ``to hold a firearms manufacturer, importer, or 
dealer liable for damages caused by the unlawful or tortuous use of a 
firearm by a person not employed by or affiliated with the 
manufacturer, dealer, or importer.'' Under my bill, those fees are 
limited to the lesser of $150 per hour, plus expenses, or 10% of the 
amount that the plaintiff is awarded in the action.
  Further, my bill provides that in lawsuits in which the defendant is 
found by the court to be ``not wholly or primarily liable for the 
damages sought,'' the plaintiff must reimburse the defendant for 
reasonable attorney's fees and costs.
  Finally, Mr. President, my bill provides that if a court strikes down 
this legislation as unconstitutional, the decision is directly 
appealable as of right to the Supreme Court of the United States.
  Mr. President, I ask unanimous consent that the text of my bill, the 
Second Amendment Preservation Act, be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 954

       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 ``Second Amendment 
     Preservation Act of 1999''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) a number of State and local governments have commenced 
     civil actions, or are considering commencing civil actions, 
     against manufacturers, importers, and dealers of firearms 
     based on the unlawful use of the firearms by a purchaser or 
     other person;
       (2) in at least some cases, the intent in bringing the 
     action is to subject manufacturers, importers, and dealers to 
     legal costs that are so onerous that the manufacturers, 
     importers, and dealers may not be able defend themselves, or 
     indeed be able to remain in business;
       (3) a majority of manufacturers, importers, and dealers of 
     firearms are small, privately owned businesses that cannot 
     afford to bear the legal costs of defending themselves in a 
     large number of judicial forums;
       (4) compared to most manufacturers, importers, and dealers 
     of firearms, States and local governments are large and 
     relatively wealthy entities that are able to spend large 
     amounts of taxpayers' dollars on a war of attrition with 
     small businesses;
       (5) fairness requires that--
       (A) a unit of government that undertakes an unsuccessful 
     ``fishing expedition'' against a firearm manufacturer, 
     importer, or dealer bear the cost of defending against its 
     frivolous and unwarranted civil action; and
       (B) taxpayers not be required to pay millions of dollars to 
     wealthy attorneys, out of awards that are intended, at least 
     in part, to benefit the victims of crime;
       (6) the Second Amendment to the Constitution requires that 
     Congress respond to actions that are intended to, and that 
     would have the effect of, nullifying that provision of the 
     Bill of Rights;
       (7) Congress has power under the Second Amendment and under 
     the Commerce Clause to take appropriate action to protect the 
     right of citizens to obtain and own firearms; and
       (8) one appropriate action that Congress may take is to 
     provide protection from excessive and unwarranted legal fees.

     SEC. 3. RULES GOVERNING ACTIONS BROUGHT TO CURTAIL THE SALE 
                   OR AVAILABILITY OF FIREARMS FOR LEGAL PURPOSES.

       (a) In General.--Chapter 44 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec.  926B. Rules governing actions brought to curtail the 
       sale or availability of firearms for legal purposes

       ``(a) Definitions.--In this section, the term `action 
     brought to curtail the sale or availability of firearms for 
     legal purposes' means a civil action brought in Federal or 
     State court that--
       ``(1) has as a defendant a firearms manufacturer, importer, 
     or dealer in firearms;
       ``(2) expressly or by implication requests actual damages, 
     punitive damages, or any other form of damages in excess of 
     the lesser of--
       ``(A) $1,000,000; or
       ``(B) 50 percent of the net assets of any such defendant; 
     and
       ``(3) seeks, in whole or in part, to hold a firearms 
     manufacturer, importer, or dealer liable for damages caused 
     by the unlawful or tortious use of a firearm by a person not 
     employed by or affiliated with the manufacturer, dealer, or 
     importer.
       ``(b) Limitation on Attorney's Fees Awarded to Plaintiff.--
     In a civil action brought to curtail the sale or availability 
     of firearms for legal purposes, notwithstanding any other 
     provision of law or any agreement between any persons to the 
     contrary, amounts paid in plaintiff's attorney's fees in 
     connection with the settlement or adjudication of the action 
     shall not exceed the lesser of--
       ``(1) an amount equal to $150 per hour for each hour spent 
     productively, plus actual expenses incurred by the attorney 
     in connection with the action; or
       ``(2) an amount equal to 10 percent of the amount that the 
     plaintiff receives under the action.
       ``(c) Attorney's Fees for the Defendant.--In a civil action 
     brought to curtail the sale or availability of firearms for 
     legal purposes, if the court finds that the defendant is not 
     wholly or primarily liable for the damages sought, the court 
     shall require the plaintiff to reimburse the defendant for 
     reasonable attorney's fees and court costs, as determined by 
     the court, incurred in litigating the action, unless the 
     court finds that special circumstances make such a 
     reimbursement unjust.
       ``(d) Power of Congress.--If any court renders a decision 
     in an action brought to curtail the sale or availability of 
     firearms for legal purposes or in any other proceeding that 
     the Constitution does not confer on Congress the power to 
     enact this section, the decision shall be directly appealable 
     as of right to the Supreme Court.''.
       (b) Conforming Amendment.--The analysis for chapter 44 of 
     title 18 is amended by inserting after the item relating to 
     section 926A the following:

``926B. Rules governing actions brought to curtail the sale or 
              availability of firearms for legal purposes.''.

       (c) Effective Date.--The amendment made by subsection (a)--
       (1) takes effect on the date of enactment of this Act; and
       (2) applies to any action pending or on appeal on that date 
     or brought after that date.
                                 ______