[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
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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
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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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