[Congressional Record Volume 150, Number 24 (Monday, March 1, 2004)]
[Senate]
[Pages S1939-S1942]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          EXEMPTION TO S. 1805

  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Before the Senator from Virginia leaves the floor, I 
express to him my gratitude for his willingness to do what he has just 
done, which is to accept the facts that exist tonight, not because he 
likes them but because he realistically has understood there is no 
alternative. I have always admired my friend from Virginia. He has 
spoken out in support of the principle which is also included in my 
amendment. Although he did not say this to me personally, I know he 
will not mind me sharing this with the body. He also wanted to make it 
possible for me to have an opportunity for a vote tomorrow, if not an 
up-or-down vote, at least on a motion to table. I thank him for his 
expression of support to me personally and his willingness to help make 
it possible for me to have a vote tomorrow.
  Mr. WARNER. Mr. President, I thank my colleague for those remarks. We 
have been together in the Senate for 25 years. We have a responsibility 
together on the Armed Services Committee and so we know how to work 
together. I intend to support the distinguished Senator from Michigan 
in his efforts. The fact is, it is a good amendment and I urge all 
Members to take a look at the amendment of the Senator from Michigan. I 
thank the Senator from Michigan for his personal comments. No one works 
harder for people than the Senator from Michigan.
  Mr. LEVIN. Mr. President, I thank the Senator from Virginia and all 
those in leadership who made it possible for this amendment to be voted 
on tomorrow afternoon and before final passage. This is a very 
significant amendment we will be voting on tomorrow.
  It has been stated by the manager of the bill--and now I am reading 
his words--that we must insist the law be clear, unambiguous. That the 
officer--here an officer who was injured by a weapon--have a day in 
court if he is harmed--here I am skipping over a few words to get to 
the point--by someone who through negligence has caused a firearm to 
get into the hand of a criminal.
  The amendment we will be voting on tomorrow afternoon makes it very 
clear lawsuits will be permitted if the defendant's own gross 
negligence and own recklessness was a proximate cause of somebody's 
death or injury. The Senator from Idaho has said on a number of 
occasions people should not be held liable for somebody else's criminal 
act. I do not disagree with that. What my amendment says is someone can 
be liable for their own recklessness and their own negligence. I make 
it clear in my amendment we are talking about gross negligence.
  A number of cases have been referred to during the debate on this 
bill. One of the cases involves the so-called Bull's Eye Shooter Supply 
Company. We had a situation where a gun dealer was allegedly reckless 
in terms of failing to

[[Page S1940]]

secure his inventory and over and over again there were losses from 
that inventory, and the DC shooters who killed so many people, Muhammad 
and Malvo, got one of those guns.
  But for the negligence and recklessness of that gun dealer, they 
would not have gotten those guns. That is the allegation in the 
lawsuit. So it is not Muhammad's and Malvo's criminal act that is the 
issue in this lawsuit in the State of Washington. It is the 
recklessness and negligence of the gun dealer that is the issue in that 
lawsuit.
  The court there was faced with a motion to dismiss and the court 
ruled it was the alleged reckless or incompetent conduct of 
distributing firearms which was the cause of action, not the criminal 
activity of Muhammad and Malvo, and that but for that reckless and 
incompetent conduct in distributing firearms, the killing would not 
have occurred. So my amendment makes clear what I think should be clear 
in this law, or any law, which is reckless or grossly negligent conduct 
on the part of a defendant, if it is the proximate cause of somebody's 
death or injury, may be grounds for civil liability.
  That is very separate from saying somebody is responsible for 
somebody else's criminal conduct. This is making somebody responsible 
for their own conduct which, of course, is the whole purpose of our 
tort law.
  Tomorrow we are going to have an opportunity to make that clear in 
the bill on which we are going to be voting. It might be argued that 
the bill we are voting on says if you are negligent per se, you can be 
held accountable. That is fine. Negligence per se means if you violate 
a statute or violate the law.
  But what happens if you are not violating a statute or law but that 
you are still reckless or you are still grossly negligent? What if you 
are not violating a criminal law or a statute but you are just simply 
reckless in the way in which you do not maintain your inventory and you 
do not secure the weapons you are selling? Most negligence, most gross 
negligence, and most recklessness is not based on a violation of law. 
It is based on a violation of a standard. We set forth those standards 
in gross negligence and recklessness in this amendment to make sure the 
people who are going to be subject to civil liability are people whose 
own gross negligence, whose own recklessness is the proximate cause of 
somebody else's injury or death.
  It is simply not right that we say somebody whose gross negligence or 
recklessness has caused injury or death to someone else should not be 
liable unless they have also violated a statute.
  The lawsuit filed by Detective Lemongello and Officer McGuire, the 
two injured police officers who were shot by a gun sold to a straw 
purchaser, alleged negligence on the part of the seller of that gun. 
The court denied a motion to dismiss the suit. This isn't a junk 
lawsuit. It is based on the alleged negligence of a gun dealer. But the 
bill before us would require it also to allege that the dealer violated 
a statute.
  It is not right that people who have been injured or killed by the 
reckless or grossly negligent conduct of a gun dealer or manufacturer 
must also prove that the dealer or manufacturer violated a statute.
  Individual responsibility has always been at the heart of good tort 
law and my amendment will keep it at the heart of the tort law that we 
are apparently going to be writing in the Senate.
  The PRESIDING OFFICER. The 5 minutes of the Senator has expired.
  Mr. LEVIN. Again, I thank all of those who made it possible for me to 
get to a vote tomorrow afternoon on a rollcall. I thank the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from New 
York is recognized for 15 minutes.
  Mr. SCHUMER. Mr. President, I am rising in support of the amendment 
we will vote on tomorrow on continuing the assault weapons ban. I am 
carrying this amendment along with Senator Feinstein, who passed the 
bill in the Senate in 1993. I was the lead sponsor in the House as well 
as the two of our colleagues from the other side of the aisle, Senator 
Warner and Senator DeWine, and many others.
  When we passed the assault weapons ban in 1993, there was a great 
deal of concern. The arguments against the ban were two: One, that the 
bill would cause to be confiscated weapons far beyond the 19 banned 
weapons, the Uzis and the AK-47s; and, two, that it would not be 
effective.
  We now have 10 years of evidence and the evidence is clear that 
neither of those worries about this bill have proven to be true. We 
cannot report a single instance where a nonassault weapon was 
confiscated, an overreaching Government, ATF, or whomever went in and 
confiscated hunting rifles or, frankly, other than the 19, weapons that 
were not on the list. We were careful in the bill. We named 670 
different guns used for hunting, protection, and sports shooting that 
could not be touched. But it is even new guns that have come out since 
then. There has not been a single complaint of which I am aware.
  Second, the bill has been effective. In all gun crimes, the percent 
of assault weapons that are used has gone down to one-third of what it 
was. A little more than 3.5 percent--I think it is 3.75 percent of 
crime guns were assault weapons back before 1993. In the last 10 years, 
it has gone down to 1.2 percent.
  Law enforcement is strongly for our bill for the simple reason they 
don't want to be outgunned on the streets. They don't want one of our 
latest criminal problems, gangs, to have Uzis and AK-47s while they are 
shooting back with their 9 mms. The bill has worked.
  As a result, the American people are overwhelmingly in favor of the 
assault weapons ban. Mr. President, 77 percent of the voters are for 
it; 21 percent against; even among gun owners, 66 percent for, 30 
percent against. So the bill has overwhelming support.
  You would think it would be renewed and renewed rather quickly, but 
instead it is hanging by a hair. If I had to bet--and I have been 
whipping this bill for the last week--there will either be a tie or it 
will pass by one vote or it will fail by one vote. This bill is neck 
and neck. All it does is renew this controversial but successful piece 
of legislation for another 10 years. In fact, it is an exact replica of 
the previous bill.
  Many of us would have liked the bill to go further, to cover weapons 
that are semiautomatic assault weapons but are not covered by the bill. 
Manufacturers have come out and created new weapons around the 19. But 
in deference to those who worry that the Government will expand 
unreasonably search and confiscation, so to speak, of these weapons, we 
didn't do it. So we are simply asking to renew the 19 different types 
of assault weapons.
  Just to show, these weapons that were banned can never be used for 
hunting. They can never be used for target practice. They can't be 
used, really, in self-defense unless you are reckless and wild, because 
they were designed by armies for use in military combat. In other 
words, they didn't have to be terribly accurate. They had to have 
strong firepower and be able to fire a whole lot of bullets in a very 
short time. Names such as AK-47, Uzi, TEC-9, and Streetsweeper--these 
are weapons of mass devastation. They are very efficient killing 
machines. They are appropriate on the field of battle but not in a 
reasonable country where there is a right to bear arms--which I believe 
in but not an unlimited right to bear any arm whatsoever.

  I would say to my colleagues, my adversaries, because that is what 
they are really, in the NRA, no amendment is absolute. I believe in the 
first amendment. I cherish it. But there are a lot of limits on first 
amendment rights. Judge Oliver Wendell Holmes said you can't wrongly 
scream ``fire'' in a crowded theater. That is an imposition on my 
complete rights of free speech but it is a reasonable limitation.
  The same on the second amendment. I tell you I resent those on the 
left who want the first amendment to be expanded as broadly as possible 
and then say the second amendment has to fit through a pinhole. There 
is a right to bear arms but it is not an unlimited right to bear arms. 
Should anyone be able to buy a tank or a bazooka? Of course not.
  Here is an AK-47. It is the most widely used assault weapon in the 
world. It is a very good military machine. It comes with a 30-round 
ammunition clip capable of being fired as fast as the operator can pull 
the trigger. The faster you can move your finger, the more

[[Page S1941]]

people you can kill. With a little practice, a shooter could kill an 
entire basketball team in seconds. That is not what we want and no one 
would use this weapon for hunting. No store owner or homeowner would 
use this for self-defense. They are not even accurate. They just fire a 
lot of bullets.
  How about the next one, the Uzi? This was designed originally as a 
submachinegun. It comes with a 32-round ammunition magazine capable of 
being fired as fast as the operator can pull the trigger. It is easy to 
hide because of its compact design and it is very reliable. Why? 
Because the Uzi was made for the Israeli Army. Not for the Bloods or 
the Crips or the MS-13 or any of the violent gangs that love to use 
these weapons.
  There is the TEC-9. We don't have a chart of it. It is similar; 30- 
to 36-rounds, easily convertible into a machinegun.
  Perhaps the most scary of all, is the Streetsweeper. The 
Streetsweeper--here it is--can fire twelve 12-gauge shotgun shells in 
less than 15 seconds. That's right, shotgun shells, not regular 
ammunition. Anyone who knows guns knows a shotgun sprays wide with 
shot, rather than fixing on a narrow target with a single bullet. That 
is what makes the Streetsweeper's capability remarkable. It is not part 
of the right of the average citizen to bear arms.
  So the bottom line is this is a reasonable bill that has been 
successful. There is no, let me repeat, no civilian use for the 19 
weapons banned by the assault weapons ban.
  Pre-ban assault weapons continue to plague our streets. A couple of 
weeks ago in my city of Albany, NY, my State, the Albany Police 
Department suffered its first death of a police officer since 1987. LT 
John Finn, a highly decorated well-regarded officer and 13-year veteran 
of the Albany PD was shot on December 23, 2003, 2 days before 
Christmas, by a criminal using a pre-ban assault weapon, an American 
Arms AP 9 mm. On February 12, Officer Finn succumbed to his wounds and 
died.
  That is all we are trying to stop, not impinge on the rights of gun 
owners. Police organizations, law enforcement are for us; the FOP, the 
International Brotherhood of Police, Major Cities Chiefs of Police, 
International Association of Chiefs of Police, Hispanic-American Police 
Command Officers, many other groups. I ask unanimous consent to have 
the list printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The International Brotherhood of Police Officers; the Major 
     Cities Chiefs of Police; the International Association of 
     Chiefs of Police; and the Hispanic-American Police Command 
     Officers Association.
       Groups which represent our State and local municipalities, 
     who see first hand the bloody violence that assault weapons 
     can cause, likewise support this bill.
       They include: the National League of Cities; the National 
     Association of Counties; and the United States Conference of 
     Mayors.
       Renewing the Assault Weapons Ban makes so much sense that 
     organizations which represent the doctors and nurses who see 
     gunshot victims in emergency rooms every day likewise support 
     this bill. They include: the American Academy of Family 
     Physicians; the American Public Health Association; the 
     National Association of Public Hospitals and Health Systems; 
     and the Physicians for a Violence Free Society;
       It makes so much sense that organizations which represent 
     victims of gun violence and other crimes in society likewise 
     support this bill. They include: the Family Violence 
     Prevention Fund; the National Coalition Against Domestic 
     Violence; and the National Network to End Domestic Violence.
       Renewing the Assault Weapons Ban makes so much sense that 
     organizations which represent just regular mothers, fathers, 
     children and families across America strongly support this 
     bill, like: the Mothers Against Violence in America; and the 
     Child Welfare League of America;
       Even religious organizations like the National Association 
     of Catholic Bishops and the American Academy of Episcopal 
     Churches support renewing the ban.

  Finally, more then 100 mayors across America have written to Senator 
Feinstein or myself in support of this bill.
  Mr. SCHUMER. Finally, the tactics.
  As I said, this bill is hanging by a thread. The vote is neck and 
neck.
  I would first ask any of you out there in America who are listening 
to support this ban and to call your Senator. Let them know how you 
feel because most Americans are overwhelmingly for the bill.
  I would say to our President down at the other end of Pennsylvania 
Avenue: Please. You said you support renewing the ban. Step up to the 
plate. Help get it passed.
  One thing the American people are upset with these days is when any 
politician says one thing but then does another. To say we shouldn't 
amend the immunity bill, to say do not lift a finger and help get this 
ban passed when it is so close, will make the American people, in my 
opinion, justifiably think the President doesn't want it to pass.
  I would again renew my plea to the Vice President that he be 
available tomorrow. There may well be a tie vote, and he has been a 
loyal and true servant to the President. We ask him to sit in the Chair 
you are now sitting in, Mr. President, and cast that vote in favor of 
renewing the ban.
  I hope my colleagues will look into their consciences.
  I understand there is a lot of misinformation about this bill. I 
still have people occasionally who come to me in my State and ask, Why 
do you want to take away my gun rights? I believe in the right to bear 
arms. I have opposed abolition of the second amendment, like some of my 
colleagues from New York on the House side have argued should be done. 
But if you do not have reasonable laws within the confines of amendment 
rights, our country wouldn't function.
  Again, I urge my colleagues to look into their consciences because we 
are going to need every vote we can get here to not allow the assault 
weapons ban to expire, which would be a step backward in America--a 
step backward for law enforcement, a step backward for safety and, 
frankly, a step backward in the political discourse of civility and 
rationality we all prize.
  I urge support of the amendment Senators Feinstein, Warner, DeWine, 
and myself will be offering for a vote tomorrow morning at 11:30.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Ohio is recognized for 15 minutes.
  Mr. DeWINE. Mr. President, I spoke earlier today in favor of an 
amendment we have offered which the Senator from New York is talking 
about; that is, the assault weapon ban. It is a very simple amendment. 
I don't intend to talk about it this evening other than to say this is 
merely a reiteration of status quo--a law that has been on the books 
now for 10 years, and a law that has the support of law enforcement 
officers across this country. It is the right thing to do from a law 
enforcement point of view. This Congress should in fact continue this 
law in effect. This is truly a law enforcement vote. I commend my 
colleague from New York for his comments.
  Let me speak tonight about three different items.
  First, very briefly, I would like to support the Levin amendment 
which will be voted on tomorrow. I thank my colleague from Michigan for 
his leadership on this issue. His amendment is a simple, modest 
amendment. It would merely allow injured victims to bring cases of 
gross negligence or recklessness against irresponsible gun dealers 
without the unreasonable restrictions of the gun liability bill that is 
in front of us. That is fair. It is justice.
  I have already spoken about what I consider to be the drastic attack 
the underlying bill makes on ordinary negligence cases and on this 
select group of victims in our society. It is wrong. As my colleagues 
know, cases of gross negligence or recklessness require even greater 
wrongdoing by irresponsible people before liability can be found. This 
amendment merely restores the ability of parties injured as a result of 
gross negligence or recklessness to have their day in court. I implore 
my colleagues in the Senate when Senator Levin's amendment is offered 
tomorrow to vote in favor of it.
  I rise this evening also in support of Senator McCain's amendment 
which will also be voted on tomorrow. This amendment is known as the 
Gun Show Loophole Closing Act of 2003. Senators Lieberman, Reed, and 
myself are the original cosponsors of this commonsense amendment, an 
amendment that aims to keep guns out of the hands of criminals and out 
of the hands of children.
  The United States Constitution guarantees the rights of gun owners. 
We all believe strongly in the second amendment. As a former prosecutor 
in Greene County, Ohio, I have learned the best

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way to protect the rights of law-abiding citizens and reducing illegal 
and often fatal use of guns is to pass and enforce tough laws that 
severely punish criminals who use them. I have tried to do that 
throughout my legislative career.
  I have consistently supported measures to keep firearms from getting 
into the wrong hands and efforts that increase the punishment of those 
who use firearms in the commission of a crime. I believe the Gun Show 
Loophole Closing Act helps achieve this goal.
  For the most part, our current system is working. Under the existing 
Brady bill, when a purchaser buys a gun from a licensed dealer, he or 
she must undergo a background check through the Federal Government's 
National Instant Criminal Background Check System, or NICS, into which 
States feed records of certain criminals and others not qualified to 
own a gun. NICS has up to 3 days to inform the dealer as to whether the 
buyer is qualified to purchase a gun. But 95 percent of these checks 
come up with an instant or near instant response allowing or 
disallowing the purchase immediately. So a decision can be made. The 
person can get their gun.
  This amendment simply applies the same commonsense check to all gun 
show sales. Right now, there is no statute requiring that all sellers 
at gun shows run these checks on potential gun buyers. Yet according to 
Federal officials, gun shows are the second leading source of illegal 
guns recovered from gun trafficking investigations.
  By leaving this loophole open, by not requiring all gun show sellers 
to run NICS checks, we are presenting gun traffickers and other 
criminals with a prime opportunity to acquire firearms. This is 
terrifying. This is unacceptable. In common language, we have a 
situation where someone can walk into a gun show, look around, look for 
a licensed firearm dealer, and find a firearm dealer. If they buy a gun 
from that person, there will be a check run. But if they do not want a 
check run on them, all they have to do is find someone at the gun show 
who is not a licensed firearm dealer. At most gun shows they can find 
that person. They just have to look around. They will find them. Guess 
what. They do not have to have a check run.
  If you are a criminal, if you have a felony conviction, or worse yet, 
if you are a terrorist, you go to a gun show and you find someone who 
is not a registered firearm dealer and you buy their gun and there is 
no check done. That is a classic definition or classic example of a 
loophole.
  Following the attacks on September 11, for example, news reports 
suggested that al-Qaida produced a handbook in which it advised 
terrorists to purchase firearms at gun shows in the United States. 
Other media reports indicate that suspected terrorists have exploited 
this loophole to acquire firearms. It is imperative now, more than 
ever, to enact legislation to protect our citizens from this potential 
area of terrorist exploitation.
  This amendment is simply common sense. Regardless of where firearms 
are purchased, whether at a gun shop or a gun show, the laws should be 
the same. It seems silly if you go to a gun show to buy a gun, the 
determination as to whether you will have to undergo a background check 
is wholly dependent upon how you purchase a gun; that is, you could buy 
a gun from one seller and be subjected to the government's Brady check. 
But if you walk a few feet away, you can find another seller, give them 
some cash, they would be willing to give you a gun, and that gun would 
not be subject to a check and that seller would not be subject to a 
check. You would walk away with a gun and totally be unchecked. Don't 
we think that criminals know this? Of course they know it.
  It is like having a metal detector at the front entrance of our 
building but leaving the back door wide open for anyone to pass 
through. Don't we think that under that circumstance, someone with 
nefarious intentions would simply use the back entrance? That would 
make our attempt at security completely illusory. Indeed, not only 
would there be no greater security whatever, we would be paying a lot 
of money to do absolutely nothing, nothing other than giving hard-
working Americans a false sense of security. That certainly makes no 
sense and would not under those circumstances.
  That is the exact same thing that is going on with the gun show 
loophole. People with these nefarious intentions know they have a back 
door to getting guns without any threat of a background check. Thus, 
this Government, spending millions of dollars on a sophisticated system 
of background checks to check the background of people who voluntarily 
choose to be checked, they go in, buy the gun, they voluntarily choose 
to be checked, but the system totally misses those who, with very 
little effort, choose to evade it.
  That is a waste of the American people's money. At the same time, it 
gives them a false sense of security. We need to provide the American 
people with the security they deserve and for which they are already 
paying. This amendment, the McCain amendment, that we will vote on 
tomorrow, closes the gun show loophole in a way that respects the 
second amendment and also respects an honest law-abiding American's 
right to buy and sell guns and to attend gun shows. That is good law. 
It is good policy. It makes good common sense. That is why I support 
this amendment and urge my colleagues to join me tomorrow.

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