[Congressional Record Volume 151, Number 105 (Thursday, July 28, 2005)]
[Senate]
[Pages S9217-S9244]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 397, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 397) to prohibit civil liability actions from 
     being brought or continued against manufacturers, 
     distributors, dealers, or importers of firearms or ammunition 
     for damages, injunctive or other relief resulting from the 
     misuse of their products by others.

  Pending:

       Frist (for Craig) amendment No. 1605, to amend the 
     exceptions.
       Frist amendment No. 1606 (to amendment No. 1605), to make 
     clear that the bill does not apply to actions commenced by 
     the Attorney General to enforce the Gun Control Act and 
     National Firearms Act.
       Reed (for Kohl) amendment No. 1626, to amend chapter 44 of 
     title 18, United States Code, to require the provision of a 
     child safety lock in connection with the transfer of a 
     handgun.

  The PRESIDING OFFICER. The Senator from Idaho.


                           Amendment No. 1626

  Mr. CRAIG. Mr. President, we are back on this very important piece of 
legislation, S. 397, the Protection of Lawful Commerce in Arms Act.
  Under a unanimous consent agreement entered into last evening, we are 
on the Kohl trigger lock amendment. I understand there is an hour 
equally divided, and we hope we can get to a vote on this before 12:30. 
This is an important amendment, which I am confident Senator Kohl will 
be here in a few moments to discuss.
  In the short term, let me visit the broader issue of the bill itself. 
We now have 62 cosponsors. I am pleased Senator Conrad has joined us in 
support of this important piece of legislation to limit predatory and 
junk lawsuits from attempting to destroy the capability of the private 
sector to produce legal, effective firearms for our Nation's citizens 
and for our police and military. Unlike most nations, we are a nation 
that does not have a government company or a government manufacturer of 
firearms. It has always been the responsibility of the private sector. 
They have done extremely well. Innovation and creativity has always 
allowed the latest and best firearm capability, not only for our 
private citizens but for the military and police departments and the 
armed services that contract with these private sector companies to 
produce not only the firearms but the effective ammunition for them.
  Some years ago, we saw a frustration growing in the gun control 
community that the public and the Congress collectively would not bend 
to their wishes. The public, in its inevitable wisdom, recognized that 
guns were not an issue in deaths caused by guns or in the commission of 
crimes, but the criminal element was the issue and that we ought to get 
at the business of law enforcement and taking those off the streets who 
used a gun in the commission of a crime. That is exactly what this 
administration has done in the last 5\1/2\ years. The use of a firearm 
or criminal activities in which a firearm is used has rapidly dropped 
in the last

[[Page S9218]]

6 years because this Justice Department has said, clearly, they will 
enforce the law.
  The law is basically if you use a gun in the commission of a crime, 
you do the time. You don't get to plea bargain it away and go back to 
the streets to reengage as a criminal to once again misuse your rights 
as a citizen in a violent or criminal activity.
  Because the anti-gun community didn't get it their way, they, over 
the years, have determined that they could use the legal system, the 
court system, to bypass and suggest that the third party, or the 
manufacturer, even though he or she was a law-abiding company and 
produced under the auspices of the Federal laws in responsible ways in 
that those products were sold through federally licensed firearms 
dealers, that wasn't good enough. Somehow you had to pass through and 
say that the crime and the fallout of crime was going to get paid for 
in some way by these responsible citizens who were building a legal and 
responsible product. That is the game--I say that--that has been 
played.
  As a result, these legal, law-abiding manufacturers and citizens have 
increasingly had to pay higher and higher legal costs to defend 
themselves in lawsuit after lawsuit that have, in almost every 
instance, been denied and thrown out of court by the judges when filed 
largely by municipalities who, obviously frustrated by gun violence in 
their communities, chose this route. Instead of insisting that their 
communities and prosecutors and law enforcement go after the criminal 
element, they, in large part, in their frustration, looked for an easy 
way out. That has brought this legislation to the floor to limit the 
ability of junk or abusive kinds of lawsuits in a very narrow and 
defined way, but in no way--and I have said it very clearly--denying 
the recognition that if a gun dealer or a manufacturer acted in an 
illegal or irresponsible way or produced a product that was faulty and 
caused harm or damage, this bill would not preempt or in any way 
protect them or immune them from the appropriate and necessary legal 
sentence.
  That is what we are about. I see that the sponsor of the trigger lock 
amendment is on the Senate floor.
  Before I relinquish the floor, I ask unanimous consent to print in 
the Record a letter from the Department of Defense as to the importance 
of this issue, the Acting General Counsel of the Department of Defense 
speaking to the importance of S. 397 in safeguarding and protecting 
these gun manufacturers that produce a large amount of our firearms and 
weapons for all of our men and women who serve in harm's way in defense 
of our freedoms.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Department of Defense,


                                    Office of General Counsel,

                                    Washington, DC, July 27, 2005.
     Hon. Jeff Sessions,
     U.S. Senate,
     Washington, DC.
       Dear Senator Sessions: This responds to your request for 
     the Department of Defense's view on S. 397 a bill to 
     ``prohibit civil liability actions from being brought or 
     continued against manufacturers, distributors, dealers, or 
     importers of firearms ammunition for damages, injunctive or 
     other relief resulting from the misuse of their products by 
     others.''
       The Department of Defense strongly supports this 
     legislation.
       We believe that passage of S. 397 would help safeguard our 
     national security by limiting unnecessary lawsuits against an 
     industry that plays a critical role in meeting the 
     procurement needs of our men and women in uniform.
       The Office of Management and Budget advises that, from the 
     standpoint of the Administration's program, there is no 
     objection to the presentation of this letter for the 
     consideration of the community.
           Sincerely,
                                              Daniel J. Dell'Orto,
                                                           Acting.

  Mr. CRAIG. In the last few days, I have found interesting editorials 
in the Wall Street Journal. They get it. They understand it. They have 
put it very clearly as to the reality of this bill, that is not just 
for the protection of law-abiding citizens but recognizing that tort 
reform is necessary. When the Congress can't do it in sweeping ways, we 
have chosen targeted ways to get at the misuse of our court system in 
large part by the trial bar.
  I ask unanimous consent to print those in the Record as well.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, July 27, 2005]

                         Gun Liability Control

       If we recall correctly, it was Shakespeare who wrote ``the 
     first thing we do, let's kill all the lawyers.'' That's going 
     too far, but the Senate can do the metaphoric equivalent this 
     week by voting to protect gun makers from lawsuits designed 
     to put them out of business.
       Senate Republicans say they have 60 votes to pass the 
     Protection of Lawful Commerce in Arms Act, which would 
     protect gun makers from lawsuits claiming they are 
     responsible for crimes committed with their products. The 
     support includes at least 10 Democrats, which speaks volumes 
     about the political shift against ``gun control'' in recent 
     years.
       The ``assault weapons ban'' expired with a whimper last 
     year. State legislatures have been rolling back firearm laws 
     because the restrictions were both ineffectual and unpopular. 
     Gun-controllers have responded by avoiding legislatures and 
     going to court, teaming with trial lawyers and big city 
     mayors to file lawsuits blaming gun makers for murder. 
     Companies have been hit with at least 25 major lawsuits, from 
     the likes of Boston, Atlanta, St. Louis, Chicago and 
     Cleveland. A couple of the larger suits (New York and 
     Washington, D.C.) are sitting in front of highly creative 
     judges and could drag on for years.
       Which seems to be part of the point. The plaintiffs have 
     asked judges to impose the sort of ``remedies'' that Congress 
     has refused to impose, such as trigger locks or tougher 
     restrictions on gun sales. Some mayors no doubt also hope for 
     a big payday. But short of that, the gun-control lobby's goal 
     seems to be keep the suits going long enough to drain profit 
     from the low-margin gun industry.
       Gun makers have yet to lose a case, but these victories 
     have cost more than $200 million in legal bills. This is a 
     huge sum for an industry collectively smaller than any 
     Fortune 500 company and that supports 20,000 jobs at most. 
     Publicly listed companies such as Smith & Wesson have seen 
     the legal uncertainty reflected in their share price. Money 
     for legal fees could be better spent creating new jobs, 
     researching ways to make guns safer, or returning profits to 
     shareholders.
       Congress has every right to stop this abuse of the legal 
     system, all the more so because it amounts to an end-run 
     around its legislative authority. A single state judge 
     imposing blanket regulations on a gun maker would effectively 
     limit the Second Amendment rights of gun buyers across the 
     nation. Liability legislation would also send a message that 
     Congress won't stand by as the tort bar and special interests 
     try to put an entirely lawful business into Chapter 11.
       The gun makers aren't seeking immunity from all liability; 
     they would continue to face civil suits for defective 
     products or for violating sales regulations. The Senate 
     proposal would merely prevent a gun maker from being pillaged 
     because a criminal used one of its products to perform his 
     felony. Murder can be committed with all kinds of everyday 
     products, from kitchen knives to autos, but no one thinks GM 
     is to blame because a drunk driver kills a pedestrian. (On 
     the other hand, give the lawyers time.) To adapt a familiar 
     line, guns don't kill industries; lawyers do.
                                  ____


             [From the Wall Street Journal, July 27, 2005]

   Senate Moves Closer to Shielding Gun Makers From Negligence Suits

                           (By David Rogers)

       Cashing in its election gains, the gun lobby was the big 
     winner in a 66-32 Senate vote that moves Congress closer to 
     enacting legislation that would shield the firearms industry 
     from lawsuits charging negligence in the manufacture or 
     distribution of weapons and ammunition.
       Majority Leader Bill Frist (R., Tenn.) vowed to complete 
     Senate passage before the August recess, which is to begin 
     this weekend. Minutes after the vote, the White House warned 
     that any amendment that ``would delay enactment of the bill 
     beyond this year is unacceptable.''
       The action came as House-Senate negotiators reached 
     agreement on a $26 billion-plus natural resources budget last 
     evening that would cut funding for clean-water and lands-
     conservation programs after Oct. 1. The Environmental 
     Protection Agency is directed to complete a rulemaking on 
     human toxicity studies, important to the pesticide industry, 
     within 180 days, but the agreement prohibits any use of 
     pregnant women, infants or children as part of such studies.
       The Senate gun bill, as drafted, seeks to bar third parties 
     from bringing civil-liability actions against manufacturers, 
     distributors or dealers for damages from the unlawful misuse 
     of a qualified product. People directly harmed in a firearms 
     incident still would be able to sue, but the standard for 
     charging negligence is so tightly written that critics say it 
     would be difficult to prevail.
       The National Rifle Association's goal is a clean Senate 
     bill that the House can send on to President Bush quickly for 
     his signature.

[[Page S9219]]

     Gun-liability legislation has twice before passed the House, 
     and the NRA now hopes to grind down the Senate opposition, 
     which has stymied the gun lobby over the past five years.
       In March 2004, for example, the NRA withdrew its support 
     for a Senate bill when opponents successfully attached gun-
     control amendments unacceptable to the lobby. Eight months 
     later, the NRA wrought vengeance at the polls, helping to 
     defeat then-Democratic Minority Leader Tom Daschle in South 
     Dakota and picking up a total of four Senate votes for its 
     position.
       The changed climate is demonstrated by the fact that 
     Democratic Sen. Robert Byrd, up for reelection next year in 
     West Virginia, added his name to the co-sponsors this week. 
     Sen. John McCain (R., Ariz.), who still harbors presidential 
     ambitions, also has become a co-sponsor since the last 
     Congress. And Mr. Daschle's leadership post now is filled by 
     Nevada Sen. Harry Reid, a strong NRA ally and one of 12 
     Democrats to support the lobby yesterday.
       At a time of war in Iraq and Afghanistan, both Sen. Frist 
     and the White House have cast the fight as a matter of 
     national security, given the threat of ``frivolous lawsuits'' 
     against firearms manufacturers who are part of the larger 
     military establishment. The same protections also would 
     extend to dealers and distributors, who have no real role in 
     national defense. Dennis Henigan, legal director of the Brady 
     Center to Prevent Gun Violence, said the framing of the issue 
     was ``classic misdirection'' to narrowly focus on a few 
     manufacturers.
       Critics argue that laws governing the distribution of 
     firearms are too lax and that only by applying broader tort 
     standards of negligence can dealers be held accountable for 
     showing inadequate diligence to secure their products or 
     determine the real buyer in straw transactions. ``Clearly, 
     this is an attempt to achieve sweeping legal immunity, the 
     kind that can only be dreamed about by other industries,'' 
     Mr. Henigan said.
       The NRA's victory was all the more striking because it 
     required the Senate to set aside debate--perhaps until 
     September--on a $441.6 billion defense-authorization bill for 
     the fiscal year that begins Oct. 1. Democrats chided 
     Republicans for sacrificing national interests for the 
     ``special self-interests'' of the gun lobby, a powerful 
     political ally. But Mr. Frist had effectively locked himself 
     into a position where he felt compelled to proceed on the gun 
     bill as a show of strength as party leader.
       In fact, Mr. Frist's hope had been to cut off debate on the 
     defense bill and complete its passage by tonight, before 
     turning to the gun legislation. That strategy had the double 
     advantage of helping the White House avoid a protracted fight 
     over base closings and its treatment of military detainees in 
     the war against terrorism.
       On a 50-48 roll call, the leader fell 10 votes short of the 
     60-vote supermajority needed to limit debate. A large part of 
     his losing margin can be explained by the fact that seven 
     Republicans broke ranks, including Sen. McCain, a former 
     prisoner of war in Vietnam who has a big stake in the debate 
     on setting a more uniform policy for the treatment of 
     detainees.
       Among accounts in the natural-resources budget bill, modest 
     increases are provided for Indian health services and forest 
     programs. The EPA's budget is cut almost $200 million below 
     present funding, and lawmakers both trimmed their own home-
     state projects and denied two-thirds of the funds sought for 
     an arts and humanities initiative backed by first lady Laura 
     Bush.

  Mr. CRAIG. I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, if we are going to give gun dealers immunity 
from lawsuits, then I believe we should insist they take every safety 
precaution available when selling firearms. This amendment goes a long 
way to help reduce the number of accidental shootings, particularly 
among the most vulnerable members of our society, our children, by 
requiring dealers to sell a safety device with all handguns. We have 
all read troubling stories about lives cut short by accidental 
shootings and teen suicides. They are made all the more terrible by the 
knowledge that many were preventable. The annual number of firearm 
injuries and deaths involving children is startling.
  According to the most recent stats available, thousands of people are 
injured every year in accidental shootings, including more than 800 
gun-related tragedies that resulted in death. In addition, it is 
estimated that every 6 hours, a young person between the ages of 10 and 
19 commits suicide with a firearm. In all, 13,053 children were injured 
by firearms in 2002. Securing the firearm with a child safety lock 
could have prevented many of these tragedies. The sad truth is that we 
are inviting disaster every time an unlocked gun is easily accessible 
to children.
  Eleven million children live in households with guns, and in 65 
percent of those homes, the gun is accessible to the child. In 13 
percent of them, the gun is left loaded and not locked. This amendment 
will help address this problem. It requires that a child safety device 
be sold with every handgun. These devices vary in form, but the most 
common resembles a padlock that wraps around the gun trigger and 
immobilizes it. Trigger locks are already used by tens of thousands of 
responsible gun owners to protect their firearms from unauthorized use, 
and they can be purchased in virtually any gun store for less than $10.
  The Senate has already expressed its support for the sale of trigger 
locks with handguns, most recently last year, when 70 Senators voted in 
favor of this exact same amendment.
  The mandatory sale of trigger locks is equally supported in the rest 
of the country and the law enforcement community. Polls have shown that 
between 75 and 80 percent of the American public, including gun owners, 
favors a mandatory sale of safety locks with guns. In a recent survey 
of 250 of Wisconsin's police chiefs and sheriffs, 91 percent agreed 
that child safety locks should be sold with each handgun.
  The current administration has indicated its support for this 
concept. During his campaign in 2000, President Bush indicated that if 
Congress passed a bill making the sale of child safety locks mandatory 
with every gun sale, then he would sign it.
  All of these people agree that we should be doing everything within 
our power to promote the use of locks or other safety devices with 
handguns. Nobody has ever claimed that this would be a total panacea. 
To be sure, it will not prevent every single firearm-related accident. 
But its importance cannot be overstated. Stats show that those who buy 
locks are more likely to use them. And when they are used, they do 
prevent accidental deaths. While imposing a minimal cost on consumers, 
it would prevent the deaths of many innocent children every year, which 
is a small price to pay. The Senate spoke overwhelmingly in favor of 
this type of proposal just last year. We should do so again today.
  I strongly urge my colleagues to support this amendment. I ask 
unanimous consent that the following Senators be added as cosponsors of 
the amendment: Senators Boxer, Mikulski, Corzine, and Lautenberg.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KOHL. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I commend Senator Kohl for this amendment. 
He has worked with so many of our colleagues to ensure that children 
are adequately protected. There are too many deaths each year of 
children because the weapons are unsecure. They are able to get access 
to them, and they are able to discharge them. There are accidental 
deaths. Sadly, there are too many childhood suicides that result from 
having access to weapons.
  The Kohl amendment is a practical and appropriate response to that by 
requiring the sale of a child safety lock along with the weapon. There 
is huge public support for this issue. Over 70 percent of Americans 
polled think this is an appropriate and necessary proposal. In fact, I 
believe 6 out of 10 gun owners similarly believe this is a sensible 
approach to dealing with the issue of the accidental death of children 
with firearms.
  We are here today to move forward on this amendment, to have a vote 
which is scheduled. I would hope, also, that we can move to other 
amendments so they could be offered for votes. Several of my colleagues 
have offered amendments. It is appropriate, since we have begun the 
process of debate and amendment and vote, to continue that process 
forward. I hope we can do that.
  I certainly commend Senator Kohl for his efforts over many years. As 
he rightfully points out, there was overwhelming support for this 
measure last year. More than 70 Senators supported it. I hope we see 
that same support this year. Certainly, the danger to children has not 
diminished from the last Congress. The practicality and efficacy of 
this approach continues to be compelling. I would hope we would have 
another strong vote in support of the amendment, as we go forward.
  I yield the floor.

[[Page S9220]]

  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, a trigger lock does not a safe weapon make. 
A trigger lock can lay right beside a firearm. Unless it is inserted 
and locked, the firearm is still accessible. You can sell a firearm. 
You can demand that there be a trigger lock. Yet still someone who is 
irresponsible in the storage and/or use of a firearm can cause that 
firearm, by the absence of a trigger lock or the absence of a safe 
storage place, to be harmful to a child. That is reality.
  Sometimes we stand on the floor of the Senate and think we can fix 
the world by simply writing a law. I am not, by that statement, 
questioning the sincerity of Senator Kohl. Last year, his amendment got 
70 votes in the Senate. At the same time, it is a mandate. In that 
mandate, have you created a safer world? I am not sure.
  I do know this: I do know what creates a safer world. That is an 
awareness, an understanding of and an educational process of how you, 
in fact, create a safer world. Gun manufacturers know that. Licensed 
and responsible firearms dealers know that. Today, more than 90 percent 
of the new handguns already sold in the United States have a safety 
device attached to them or that comes with it that is part of the sales 
package.
  So already, clearly, the educational process has gone forward. There 
are several national private organizations out there who have 
constantly and repetitively taught young people about the misuse of 
firearms. The Eddie Eagle program of the National Rifle Association 
educates thousands and thousands of young people each year to stay away 
from a firearm if they see one, to report it if they see one and, 
obviously, to seek an adult's knowledge about it.
  Still, tragically enough, a child's curiosity in a misplaced firearm 
can cause accidents; it always has and, even with the passage, 
tragically enough, of the Kohl amendment, if it becomes law, it always 
will. You cannot create the perfect world. It is simply an 
impossibility to do. We try, and we try to at least shape that world in 
a way that makes it safer. But there is a reality I think all of us 
clearly understand. The statistics, though, while alarming if it is 
even one child, are dramatically improving. I think it is important to 
say on the record what the facts are. Unintentional firearm deaths--
this is from the National Safety Council records. In 2001, there were 
802 total; 15 of those 802 were under the age of 5 years; 57 were from 
5 years old to 14 years old. That is that phenomenal time of curiosity 
among young children. No question about it, if that trigger lock was in 
place, a life might have been saved. I don't question that either. But 
then again, you have to get the adult who has the responsibility with 
that firearm to put the trigger lock in place. It is not automatically 
attached or automatically activated. It has to be humanly attached and 
humanly activated. There were 110 of the 802 deaths from age 15 to age 
19. My guess is, unintentional, yes, by statistical fact it was. But 
again, that is an age when young people ought to know, ought to have 
been trained, ought to have had some level of education about the 
understanding of the safe use of a firearm. From age 20 to 24, there 
were 96 of the 802. Age 25 to 45, there were 268 accidental, 
unintentional deaths of the 802 total in 2001; and age 45 to 64--these 
are, without question, mature adults who clearly ought to understand 
and, yet, unintentional, accidental firearm deaths numbered 177. That 
was out of the 802 total in 2001. In 2002, it was 800. In 2003, it 
dropped to 700.
  The point is this: From 1992 to 2003, there has been a 54-percent 
decline in accidental, unintentional deaths caused by firearms. 
Something is beginning to work out there, because gun ownership 
continues to go up in our country. So there is, without doubt, an 
educational process underway about the importance of handling a firearm 
appropriately and correctly, using safety devices when that firearm is 
in storage or nonuse, and in a way that is protecting. The 90-percent 
sales of trigger locks today on new weapons, new firearms, may be a 
contributing factor to that. That number continues to go up. So there 
was a 54-percent increase from 1992 to 2003 in the reduction--54 
percent down--of accidental, unintentional firearms deaths. From 2001 
to 2003, that figure was a 13-percent decline. Those are very important 
statistics.
  Once again, in no way should my statement on the floor be taken as 
someone who doesn't care or recognize that one child's death is one too 
many. We will not talk about safety belts and about safety seats and 
about any of the other kinds of deaths of children in that 5-year-old 
and under age group. Those are so dramatically higher than firearms 
that one could argue something ought to be done about those. Clearly, 
some things are being done about those. If you have a child in a safety 
seat or not in a safety seat and it is a State law and you have a law 
enforcement officer out there, you can, in many instances, note that 
and cause the adult to be more responsible than you can in the privacy 
of a home, where most of our firearms are today.
  My point in arguing or discussing this issue is not to suggest we 
ought not to be concerned, but to clearly recognize that we will not, 
by this, in any way create a perfect world. Safe storage devices are no 
substitute for common sense and a clear understanding that a firearm 
misuse can become, as we all know, a lethal device. A firearm 
irresponsibly used can become a lethal device. While I know this is a 
popular thing to do, the point is--and I hope it is made clear by what 
I have said--the world better understands today than ever before, and 
unintentional deaths, accidental deaths by firearms have dramatically 
dropped in this country, and they are continuing to drop.
  Nothing replaces the responsible action of an adult in his or her 
exercising of their constitutional rights to provide safe storage away 
from that casual curiosity of a small child about the uniqueness of a 
mom or dad's firearm, owned and held in the homes of America.
  So I am certainly going to suggest to my colleagues that they vote 
their will on this, but it is important we shape it in the right 
context. I have always appreciated working with Senator Kohl and his 
sincerity on these kinds of issues. I think what he suggests today, as 
it relates to fines, or revocation of license, or failing to sell, is 
an appropriate fashion to go. But again, it is a mandate that I think 
today's reality in the marketplace would suggest is in part an 
unnecessary thing to do.
  I yield the floor and retain the remainder of our time.
  The PRESIDING OFFICER. Who yields time?
  Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. CRAIG. I ask that the time be charged equally on both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. I rise to talk about this bill. There has been a lot 
of debate on the floor, and some have suggested this is a special 
interest group piece of legislation. I am here to say that I think it 
is very important this Senate do everything it can to stop frivolous 
lawsuits against gun manufacturers. Class action lawsuit reform, which 
we enacted earlier this year, also was an effort to curb the overly 
litigious society America now lives in.
  We have found in so many instances that it is the litigiousness of 
America's society that drives jobs overseas and out of our country 
because we have lawsuit abuse of mammoth proportions. One of the areas 
in which there is lawsuit abuse is suing a gun manufacturer for the 
misuse of a gun. That is like suing the maker of a plate because 
someone throws a plate at another person. That is not what plates are 
for. And most certainly, the misuse of a gun is not caused by the 
manufacturer of a gun; it is caused by the person who is misusing the 
gun. So the Senate is taking steps in every area we can to curb this 
abuse of our legal system.
  Today, we are addressing one portion of that in trying to stop gun 
manufacturers from being sued erroneously. There are many areas in 
which you can

[[Page S9221]]

sue a gun manufacturer. If the gun malfunctioned, then that kind of 
lawsuit, of course, would be allowed. They would also be allowed where 
there is a knowing violation of a firearms law, when the violation is 
the proximate cause of the harm for which the relief is sought. 
Negligent entrustment, defective product, or breach of contract or 
warranty are certainly areas where litigation is warranted. But when we 
have lawsuits filed by cities against plaintiffs such as Colt or 
Beretta, and the cities are filing a lawsuit against the gun 
manufacturer to stop the manufacture of guns, that is wrong.
  The second amendment is one of the most treasured of our amendments 
to the Constitution, and that is the right to keep and bear arms, the 
right to protect yourself and your family in your home. That is 
something I have a bill to address right here in the District of 
Columbia, to make sure no person is deprived of their right under the 
Constitution to protect themselves in their homes by owning a firearm. 
You know, America is one of the few countries that doesn't have 
Government manufacture of guns. We don't. We have private manufacturers 
of guns and, therefore, we have the private use and private lawsuits 
that sometimes are filed just because a gun is used in a crime.
  Well, it is not the fault of the gun manufacturer a crime is being 
committed. We need to put the fault for a crime on the person 
committing the crime. So I am speaking for this bill. I think Senator 
Craig has laid out very well the issues of the gun laws. I certainly 
want every gun to be sold with a lock, and most guns in America are. 
And if they are not, having that device added to the gun, I think, is 
fine.
  I want everyone to have safety protection for guns in homes, because 
nothing could be worse than a child going into a gun cabinet and 
getting a gun that is not understood by the child and is fired. That is 
why we have safety locks. Most gun owners are responsible gun owners, 
and they should have a safety lock on a gun, particularly if there are 
children in the home.
  I want to add my support for the bill and the ability for our private 
gun manufacturers to face lawsuits that are legitimate, but not to have 
a frivolous lawsuit that is filed against a gun manufacturer through no 
fault of the manufacturer for the misuse of the gun--not a malfunction, 
but a misuse.
  I applaud the efforts of Senator Craig, and I hope we can take one 
more step toward curbing the lawsuit abuse that has been happening in 
this country in many areas. Frivolous lawsuits have been filed against 
gun manufacturers not for the malfunction of a gun, but the misuse. 
That is not the fault of the manufacturer, just as it is not the fault 
of other manufacturers of products that are misused.
  Mr. President, I hope my colleagues will support this important 
legislation. Let me say, in closing, I have heard a lot of debate about 
stopping the Defense bill to go to this bill.
  We had a cloture vote on Defense. Many people voted against cloture, 
and therefore the bill was brought down. I hope we can address the 
Defense authorization bill. I voted for cloture so we could go 
forward--not to stop the debate, but to curb it and keep it to relevant 
amendments so we may get this very important legislation through. With 
the cooperation of the other side, we will be able to do that the very 
first week we return. But I do think relevant amendments, not 100 
amendments, including issues that do not even pertain to our defense, 
are legitimately cut off through a cloture vote.
  If we can get cooperation from the other side, we certainly intend to 
pursue the Defense authorization bill. I wish we could have done it 
this week, and I voted for cloture so that we could. We did not win. 
There were over 40 people who voted against cloture. So now we are on 
another very important bill, and we intend to take up the energy 
conference report and the highway conference report, two major pieces 
of legislation that we will be able to send to the President this week.
  I think we are going to have quite a successful week, a successful 
first part of this session of Congress to get important legislation on 
energy to create more incentives for different sources of energy for 
our country so we can become more self-sufficient.
  Certainly the highway bill will be a jobs creator to put the highway 
people to work with the larger amount of money that is now available in 
the highway trust fund. Mass transit is going to get its authorization 
as well in this highway bill.
  So we have a lot to do. I hope we can continue to pass this gun 
manufacturers liability bill--it is a good bill--and go forward with 
the other important business of our country. The first week we get 
back, I hope we will be able to address the elimination of inheritance 
taxes, death taxes, and I hope very much that we can get the Defense 
authorization bill and the Defense appropriations bill out by the first 
of the fiscal year so there will not be one day's delay in the money 
that is needed by our Department of Defense for the needs of the men 
and women who are fighting for the continued freedom of our country by 
fighting terrorism overseas.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from Idaho.
  Mr. CRAIG. Mr. President, the other side has asked if we would 
consider yielding back time. I will certainly work with the floor 
leader. We are checking to see if there is anyone else on our side who 
would want to come for the purpose of debating the Kohl amendment. If 
there is not, we will yield back time and accommodate as much as we 
can.
  While we work out our time here, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I ask unanimous consent that, while we are 
working out the time situation to see if anyone else wants to debate, 
the time under the quorum call be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, it is my understanding that we are ready to 
vote on the Kohl amendment. So I ask unanimous consent that all time be 
yielded back on both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to amendment No. 1626. The clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  The result was announced--yeas 70, nays 30, as follows:

                      [Rollcall Vote No. 207 Leg.]

                                YEAS--70

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brownback
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Coleman
     Collins
     Conrad
     Corzine
     Dayton
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hutchison
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McConnell
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Voinovich
     Warner
     Wyden

                                NAYS--30

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Chambliss
     Coburn
     Cochran
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Ensign
     Enzi
     Hatch
     Inhofe
     Isakson
     Kyl
     Lott
     Martinez

[[Page S9222]]


     Sessions
     Shelby
     Talent
     Thomas
     Thune
     Vitter
  The amendment (No. 1626) was agreed to.
  Mr. CRAIG. Mr. President, I move to reconsider the vote and move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.


             Modifications to Amendments Nos. 1605 and 1606

  Mr. FRIST. Mr. President, I understand there is a technical drafting 
error in the Craig amendment No. 1605, and I would therefore ask 
unanimous consent that amendments 1605 and 1606 be modified with the 
changes at the desk. I would note that these are technical changes 
only.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The modifications are as follows:


                           AMENDMENT NO. 1605

       On page 10, line 16, at the end, add the following:

     ``; or (iv) an action or proceeding commenced by the Attorney 
     General to enforce the provisions of chapter 44 of Title 18''


                           AMENDMENT NO. 1606

       At the end of the Amendment, add the following:

     ``or chapter 53 of Title 26, United States Code.''.

  Mr. FRIST. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, for those who are interested and watching, 
at this moment we are attempting to look at all the amendments that 
have been offered, and we are close to proceeding on another meeting. 
We are requesting unanimous consent now which will allow Members to 
debate that between 2 and 3, with votes, and then we will attempt in 
all sincerity to move forward on the process that takes us through to a 
cloture vote at some time late afternoon, evening, or early tomorrow 
morning on this important issue. There is progress being made as we 
move through this process.
  With that, until the unanimous consent is ready, I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CRAIG. Mr. President, I think the floor leader has seen the UC, 
has he not?
  Mr. President, I ask unanimous consent that at 2 o'clock today, the 
pending amendments be temporarily set aside and Senator Levin be 
recognized in order to offer amendment No. 1623; provided further that 
there then be 1 hour for debate equally divided in the usual form, with 
no amendments in order to the amendment prior to the vote.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I thank Senator Reed.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CRAIG. Mr. President, under a previously proffered unanimous 
consent agreement, we will spend 1 hour, from 2 p.m. to 3 p.m., on the 
Levin amendment, with the time equally divided. We anticipate a vote at 
or around 3 o'clock.
  I see the Senator from Michigan is now on the floor and ready to 
offer his amendment.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Michigan.


                           Amendment No. 1623

  Mr. LEVIN. Mr. President, I call up amendment No. 1623.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 1623.

  Mr. LEVIN. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To clarify the prohibition on certain civil liability 
                                actions)

       On page 13, after line 4, add the following:

     SEC. 5. GROSS NEGLIGENCE OR RECKLESS CONDUCT.

       (a) In General.--Nothing in this Act shall be construed to 
     prohibit a civil liability action from being brought or 
     continued against a person if the gross negligence or 
     reckless conduct of that person was a proximate cause of 
     death or injury.
       (b) Definitions.--As used in this section--
       (1) the term ``gross negligence'' has the meaning given 
     that term under subsection (b)(7) of the Bill Emerson Good 
     Samaritan Food Donation Act (42 U.S.C. 1791(b)(7)); and
       (2) the term ``reckless'' has the meaning given that term 
     under section 2A1.4 of the Federal Sentencing Guidelines 
     Manual.
  Mr. LEVIN. Mr. President, although I am tempted to allow the reading 
to take place, it is a short amendment, and I am going to read the 
heart of it myself:

       Nothing in this Act shall be construed to prohibit a civil 
     liability action from being brought or continued against a 
     person if the gross negligence or reckless conduct of that 
     person was a proximate cause of death or injury.

  The bill itself provides in section 2, page 3, that the purpose of 
this bill--one of them--is that ``the possibility of imposing liability 
on an entire industry for harm that is solely caused by others is an 
abuse of the legal system. . . .''
  And I agree with that.
  On page 5 of the bill where it states its purpose:

       Purpose.--
       (1) To prohibit causes of action against manufacturers, 
     distributors, dealers, and importers of firearms or 
     ammunition products . . . for the harm solely caused by the 
     criminal or unlawful misuse of firearm products by others. . 
     . .

  And I agree with that. Nobody should be held responsible or 
accountable for harm which is perpetrated by others.
  What about their own reckless or negligent conduct? When we look at 
the language of this bill, it is not just that manufacturers and 
dealers are not held accountable for the misconduct of others, except 
for three or four very narrowly described categories, they are off the 
hook for their own misconduct, their own reckless conduct, their own 
negligent misconduct. And that is what my amendment seeks to correct or 
clarify.
  The stated purpose of this bill is that if negligence or recklessness 
is caused by others, if the misconduct of a third party is the cause of 
damage, that the gun dealer or manufacturer should not be held 
accountable. We agree with that. But what if their own recklessness, 
their own gross negligence contributes to the damage or, to put it in 
legalistic terms, what happens if their own misconduct is a proximate 
cause of the damage, injury, or death to somebody else? Why should they 
be off the hook for their own misconduct?
  I ask unanimous consent, by the way, that Senator Durbin be added as 
a cosponsor to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, what the amendment says is this act does 
not prohibit a civil liability action from being brought or continued 
against a person if his own gross negligence or reckless conduct was a 
proximate cause of the death or injury.
  We have heard about a number of cases that have been brought to the 
attention of this body. These are cases where manufacturers or dealers 
have been held liable for their own misconduct, their own negligence, 
their own recklessness where the allegation against a dealer or 
manufacturers had to do with their own behavior.
  We heard about the tragic DC area sniper shootings case where there 
was a settlement that was obtained from a gun supplier, called Bull's 
Eye Shooter Supply, for their own negligence. Mr. President, 238 guns 
had gone missing from Bull's Eye's inventory. Fifty had been traced to 
criminal actions since 1997. If this bill had been enacted prior to the 
DC area sniper shootings, the victims would have been unable to even

[[Page S9223]]

have their case against that supplier heard in court. And there are 
many other cases. There are so many cases that this is why police 
officers, police chiefs, and police departments around the country 
oppose this bill as it is written.
  We should protect innocent manufacturers and gun dealers, just the 
way we should protect any innocent party in this country. But we should 
not protect anybody--I don't care if it is a manufacturer of guns or a 
manufacturer of automobiles or a manufacturer of refrigerators or a 
dealer in those products or any other products--we should not protect 
their folks from their own reckless conduct, their own negligence. And 
this bill does that. It does not say that it does that. It says it is 
protecting folks from the conduct of others. But the bill's analysis 
clearly indicates, when you go beyond the stated purpose, that it is 
the manufacturers' and gun dealers' own negligence and recklessness 
which is immunized, with very narrow exceptions.
  If they committed a violation of law, if they have committed a crime, 
you can go after them; they are still on the hook. If they negligently 
entrust, knowing that the person to whom they have entrusted a weapon 
is going to go out and commit a crime or do something unlawful, they 
are still on the hook. But if they just left their guns sloppily around 
the store, or if they hired employees who they knew or should have 
known were going to illegally sell guns, steal guns, and then have 
those guns used in a criminal endeavor--and these are real cases--if 
that is the type of negligence or recklessness that is at issue, then 
they are off the hook.
  They are only kept on the hook, under the language of this bill, if 
they designed something negligently, if they have negligently entrusted 
in a very narrow definition, or if they have committed a crime.
  I want to read excerpts from a letter which has been signed by, I 
believe, 75 law professors:

       Dear Senators and Representatives: S. 397 . . . described 
     as ``a bill to prohibit civil liability actions from being 
     brought or continued against manufacturers, distributors, 
     dealers, or importers of firearms or ammunition for damages 
     resulting from the misuse of their products by others,'' 
     would largely immunize those in the firearms industry from 
     liability for negligence. This would represent a sharp break 
     with traditional principles of tort liability. No other 
     industry enjoys or has ever enjoyed such blanket freedom from 
     responsibility for the foreseeable and preventable 
     consequences of negligent conduct. . . .
       American law has never embraced a rule freeing defendants 
     from liability for the foreseeable consequences of their 
     negligence merely because those consequences may include the 
     criminal conduct of third parties.

  Under American tort law, they say:

      . . . actors may be liable if their negligence enables or 
     facilitates foreseeable third party criminal conduct.

  These professors remind us:

       Thus, car dealers who negligently leave vehicles 
     unattended, railroads who negligently manage trains, hotel 
     operators who negligently fail to secure rooms, and 
     contractors who negligently leave dangerous 
     equipment unguarded are all potentially liable if their 
     conduct--

  Their conduct--
     creates an unreasonable and foreseeable risk of third party 
     misconduct, including illegal behavior, leading to harm.

  In this amendment, we make it clear that if the conduct of gun 
manufacturers and gun dealers is grossly negligent or reckless, and if 
that is a proximate cause of the death or injury of someone else, they 
are not off the hook, and they should not be. No one in this country 
should be. No one in this country is, as far as I know.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 20 minutes 40 seconds 
remaining.
  Mr. LEVIN. I appreciate that. My cosponsor, Senator Dayton, would 
like 5 minutes yielded to him. I yield 5 minutes to Senator Dayton.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I thank my colleague, the senior Senator 
from Michigan, for whom I have so much respect. He is a leader and 
champion in so many important areas and has, once again, risen to this 
occasion. I am proud to be cosponsor of the Levin amendment.
  Mr. President, this legislation eviscerates the liability for 
negligence for one industry in America, the gun industry. I strongly 
support the second amendment.
  I have enjoyed the support of the NRA in the past, probably not in 
the future. Last year in this country, by the industry statistics, over 
1.3 million handguns were sold and over 2 million long guns--legally, 
properly, in almost all cases constitutionally protected. Nothing in 
this country, nothing being considered here, nothing that would ever 
pass this body, in my lifetime, would prevent law-abiding citizens from 
lawfully buying and owning firearms. Nothing should and nothing will, 
not because of the existence of the NRA, not because they are holding 
forth and preventing the marauding hordes from somehow overriding and 
overturning this constitutional amendment--it is not going to be 
changed because the political support in this country would not be for 
it. The people would not support it. That right is constitutional and 
it is inviolable, but it is not inconsistent with that right to also 
require the responsible distribution and sale of those millions of 
firearms.
  We all know what damage they can do to innocent people when they are 
misused by criminals or mistakenly used by children. We should do all 
we reasonably can to prevent those tragedies to innocent people and to 
innocent families. We should insist that everyone in the gun industry 
do all they can to prevent them as well. That is what the legal 
standard of negligence requires. It is what most people in this 
industry consistently practice.
  I own two handguns. I own two shotguns. They are in Minnesota, 
purchased from Minnesota dealers who take their responsibilities very 
seriously. They are not our concern. They need not be concerned because 
their own practices are a clear defense against any unwarranted 
accusations.
  However, there are a few in this country, as there are in any 
industry, that are not responsible manufacturers, distributors, or 
dealers. Senator Levin has cited evidence of the results of those 
irresponsible actions, and they should be our concern. They certainly 
do not warrant our protection. They certainly do not deserve to be 
elevated to a special status that is not accorded to responsible 
manufacturers and sellers of every other consumer product in America.
  The Levin amendment, and I will read it again, says that if gross 
negligence or reckless conduct of that person was the proximate cause, 
a direct cause of death or injury to somebody else, this act shall not 
prohibit a civil liability action from being brought forth. How can 
anyone here be opposed to that? It defines those terms clearly in the 
amendment, which was one of the specious excuses used to oppose it last 
year. It defines its terms more clearly than does the underlying bill. 
So if this amendment fails, it truly gives lie to the claim that this 
bill intends to hold the gun industry to any standard of liability. If 
not for gross negligence that is a direct cause of death or injury to 
an innocent person, if not for that, there is no standard of liability 
at all.
  The American Bar Association has taken a position in opposition to 
this legislation, and I would just note a couple of references. I ask 
unanimous consent that following my remarks, this be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. DAYTON. It says that this proposed legislation would remove 
defendants from one of the oldest principles of civil liability law--
that persons or companies who act negligently should be accountable to 
victims harmed by this failure of responsibility. It states that under 
product liability laws in most States, manufacturers must adopt 
feasible safety devices that would prevent injuries caused when their 
products are foreseeably misused, regardless of whether the uses are 
``intended'' by the manufacturer or whether the product ``fails or 
improperly functions.''
  Thus, as the Senator from Michigan noted, automobile makers have been 
held civilly liable for not making cars crashworthy even though the 
intended use is not to ``crash the cars.'' Manufacturers of cigarette 
lighters must make them childproof even though children are not 
intended to use them. Under this proposed legislation, however, State 
laws would be preempted so

[[Page S9224]]

that gun manufacturers would enjoy a special immunity.
  The letter also points out that this is happening in the existing 
legal backdrop of the present unparalleled immunity that the firearms 
industry already enjoyed from any Federal safety regulation. Unlike all 
other consumer products except for tobacco, there is no Federal law or 
regulatory authority that sets minimum safety standards for 
domestically manufactured firearms because that industry was able to 
gain an exemption for firearms from the 1972 enacted Consumer Product 
Safety Act, the primary Federal law that protects consumers from 
products that present unreasonable risk of injury. Of all the products 
we should have included in that legislation, firearms are among them 
given the inherent danger from their misuse or from their improper 
manufacture. Instead, they are exempted from the consumer product 
safety oversight by the Federal Government. That is the power of the 
industry. I guess they have the power, they are demonstrating, to get 
this bill enacted as well and remove themselves from all liability. 
That is not in the best interest of America. It is not a fair standard 
for America. It is an injustice to other businesses, manufacturers and 
sellers of every other product in America.
  If we are going to recognize, as we should, that excessive litigation 
is a problem for this industry and for most all others, we should deal 
with tort reform in its entirety as it applies fairly and equally to 
all businesses and all industries, not single out one for special 
treatment.
  I yield the floor.

                               Exhibit 1

                                         American Bar Association,


                                    Government Affairs Office,

                                                    April 4, 2005.
       Dear Senator: I am writing on behalf of the American Bar 
     Association to express our strong opposition to S. 397, the 
     Protection of Lawful Commerce in Arms Act, and to similar 
     legislation to enact special tort laws for the firearms 
     industry. The ABA opposes S. 397, and has opposed similar 
     legislation in the past two Congresses, because we believe 
     the proposed legislation is overbroad and would unwisely and 
     unnecessarily intrude into an area of traditional state 
     responsibility.
       The responsibility for setting substantive legal standards 
     for tort actions in each state's courts, including standards 
     for negligence and product liability actions, has been the 
     province of state legislatures and an integral function of 
     state common law since our nation was founded. S. 397 would 
     preempt state substantive law standards for most negligence 
     and product liability actions for this one industry, 
     abrogating state law in cases in which the defendant is a gun 
     manufacturer, gun seller or gun trade association, and would 
     insulate this new class of protected defendants from almost 
     all ordinary civil liability actions. In our view, the 
     legitimate concerns of some about the reach of a number of 
     suits filed by cities and state governmental units several 
     years ago have since been answered by the deliberative, 
     competent action of state courts and within the traditions of 
     state responsibility for administering tort law.
       There is no evidence that federal legislation is needed or 
     justified. There is no hearing record in Congress or other 
     evidence to contradict the fact that the state courts are 
     handling their responsibilities competently in this area of 
     law. There is no data of any kind to support claims made by 
     the industry that it is incurring extraordinary costs due to 
     litigation, that it faces a significant number of suits, or 
     that current state law is in any way inadequate. The Senate 
     has not examined the underlying claims of the industry about 
     state tort cases, choosing not to hold a single hearing on S. 
     397 or its predecessor bills in the two previous Congresses. 
     Proponents of this legislation cannot, in fact, point to a 
     single court decision, final judgment or award that has been 
     paid out that supports their claims of a ``crisis''. All 
     evidence points to the conclusion that state legislatures and 
     state courts have been and are actively exercising their 
     responsibilities in this area of law with little apparent 
     difficulty. S. 397 proposes to exempt this one industry from 
     state negligence law. The proposed federal negligence law 
     standard will unfairly exempt firearms industry defendants 
     from the oldest principle of civil liability law: that 
     persons, or companies who act negligently should be 
     accountable to victims harmed by this failure of 
     responsibility. Negligence laws in all 50 dates 
     traditionally impose civil liability when individuals or 
     businesses fail to use reasonable care to minimize the 
     foreseeable risk that others will be injured and injury 
     results. But this proposed legislation would preempt the 
     laws of the 50 states to create a special, higher standard 
     for negligence actions for this one protected class, 
     different than for any other industry, protecting them 
     from liability for their own negligence in all but 
     extremely narrow specified exceptions. The ABA believes 
     that state law standards for negligence and its legal 
     bedrock duty of reasonable care should remain the standard 
     for gun industry accountability in state civil courts, as 
     these state standards do for the rest of our nation's 
     individuals, businesses and industries.
       The proposed federal product liability standards will 
     unfairly insulate firearm industry defendants from 
     accountability in state courts for design defects in their 
     products. The proposed new federal standard would preempt the 
     product liability laws in all 50 states with a new, higher 
     standard that would protect this industry even for failing to 
     implement safety devices that would prevent common, 
     foreseeable injuries, so long as any injury or death suffered 
     by victims resulted when the gun was not ``used as 
     intended''.
       Under existing product liability laws in most states, 
     manufacturers must adopt feasible safety devices that would 
     prevent injuries caused when their products are foreseeably 
     misused, regardless of whether the uses are ``intended'' by 
     the manufacturer, or whether the product ``fails'' or 
     ``improperly'' functions. Thus automakers have been held 
     civilly liable for not making cars crashworthy, even though 
     the ``intended use'' is not to crash the car. Manufacturers 
     of cigarette lighters must make them childproof, even though 
     children are not ``intended'' to use them. Under. this 
     proposed legislation, however, state laws would be preempted 
     so that gun manufacturers would enjoy a special immunity.
       Enactment of S. 397 would also undermine responsible 
     federal oversight of consumer safety. The broad and, we 
     believe, unprecedented immunity from civil liability that 
     would result from enactment of S. 397 must be viewed against 
     the existing legal backdrop of the present, unparalleled 
     immunity the firearms industry enjoys from any federal safety 
     regulation. Unlike other consumer products, there is no 
     federal law or regulatory authority that sets minimum safety 
     standards for domestically manufactured firearms. This is 
     because the firearms industry was able to gain an exemption 
     for firearms from the 1972-enacted Consumer Product Safety 
     Act, the primary federal law that protects consumers from 
     products that present unreasonable risk of injury. Over the 
     last 30 years, an average of200 children under the age of 14 
     and over a thousand adults each year have died in gun 
     accidents which might have been prevented by existing but 
     unused safety technologies. A 1991 Government Accounting 
     Office report estimated that 31 percent of U.S. children's 
     accidental firearm deaths could have been prevented by the 
     addition of two simple existing devices to firearms: trigger 
     locks and load-indicator devices. Sadly, these minimal safety 
     features are still not required.
       This bill, if enacted, would insulate the firearms industry 
     from almost all civil actions, in addition to its existing 
     protection from any consumer product safety regulations. Such 
     special status for this single industry raises serious 
     concerns about its constitutionality; victims of gun violence 
     have the right--as do persons injured through negligence of 
     any party--to the equal protection of the law.
       The risk that states may at some future date fail to 
     appropriately resolve their tort responsibilities in an area 
     of law--where there is no evidence of any failure to date--
     cannot justify the unprecedented federal preemption of state 
     responsibilities proposed in this legislation. The ABA 
     believes that the states will continue to sort out these 
     issues capably without a federal rewriting of state 
     substantive tort law standards. The wiser course for 
     Congress, we believe, is to respect the ability of states to 
     continue to administer their historic responsibility to 
     define the negligence and product liability standards to be 
     used in their state courts. For these reasons, we urge you to 
     reject S. 397.
           Sincerely,
                                                  Robert D. Evans.

  The PRESIDING OFFICER. Who yields time?
  The Senator from Idaho.
  Mr. CRAIG. Mr. President, I yield 10 minutes of the opposition time 
to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I rise in opposition to the amendment that 
has been proposed by the Senator from Michigan and cosponsored by the 
Senator from Minnesota. While this amendment appears to be innocuous, 
it would actually gut the very underlying purpose of this legislation. 
Let me explain briefly.
  First, the purpose of this bill is to prohibit frivolous lawsuits 
from being brought against manufacturers or sellers of firearms, lawful 
products, but which result from the criminal or unlawful use of a 
firearm.
  Now, the Senate has many people who have had a lot of experience in 
the legal profession, and any of us who have had any experience with 
civil litigation, particularly tort litigation, know that the scope of 
the discovery, the scope of the litigation is determined by what is 
pled actually by the person who brings the lawsuit, or the plaintiff.
  In my experience, and I am confident that it is generally true, in 
virtually

[[Page S9225]]

every civil lawsuit where damages are sought, not only is there a 
pleading of ordinary negligence--or perhaps strict liability if it is a 
product or manufacturer--but in addition there is an allegation of 
gross negligence, which is what this amendment would except from the 
general prohibition against lawsuits against manufacturers of these 
lawful products for harm resulting from criminal or unlawful use of a 
firearm.
  It is clear to me that the litigation expense, the harassment of a 
lawful manufacturer of this product, would not be avoided. In fact, one 
of the very purposes of this legislation would be undermined if this 
amendment were agreed to. So I urge my colleagues to oppose it, as I 
do.
  The fact is, in America today, we are less competitive globally 
because of a variety of reasons, but it can be summarized this way: our 
tax policy, our regulatory policy, our lawsuit culture, the cost of 
health care, just to name four items. But the fact is, because of our 
litigation culture today in this country, we are less competitive with 
other countries around the world, and we are seeing the exodus of jobs 
in America because, simply stated, manufacturers and producers of other 
lawful goods can do it cheaper and more efficiently elsewhere. That is 
a threat to our economy and our prosperity that we enjoy in this 
country.
  This is actually true in the case of gun manufacturers. For example, 
one such manufacturer is located in the small town of Eagle Pass in my 
home State of Texas. A company by the name of Maverick Arms, Inc., 
assembles Maverick and Mossberg brand firearms there and is one of a 
group of companies that is in the fourth generation of family ownership 
that dates as far back as 1919. Maverick employs approximately 150 
skilled workers in Eagle Pass, as well as supplying other work to other 
vendors.
  Maverick and its parent company, Mossberg, cannot withstand the 
continued onslaught of frivolous litigation against this manufacturer 
for merely doing what lawful manufacturers do--making a legal product 
but in this instance one that is misused by a criminal. They know if 
they get caught up in the litigation, too often emotions run high, 
reason and rationality is suspended, and these manufacturers become not 
only sued but actually on occasion held responsible for the acts of 
criminals.
  I certainly respect the distinguished Senator from Michigan, and I 
was just thinking, of course, his State is known in particular for 
manufacturing automobiles. It strikes me that automobiles can be used 
safely or unsafely, but certainly no one would claim that General 
Motors or any other manufacturer of an automobile should be held 
responsible if someone decides to take that automobile that is 
operating in completely good condition and decides to run over somebody 
and kill them or cause them physical harm.

  For the same reason, firearms can be used both for lawful purposes 
and safely or they can be misused. For the same reason we would say 
General Motors or any car manufacturer would not be responsible for the 
criminal use of an automobile, so should manufacturers of firearms not 
be held responsible for the criminal acts or misuse of their lawful 
product.
  We know in the end that what this is all about is trying to drive gun 
manufacturers out of business. Unfortunately, that means American jobs 
are being threatened. Eventually it means that the second amendment 
rights of law-abiding citizens are compromised.
  I wish we would focus more of our efforts, as we have in the recent 
past, on criminals, the people who misuse firearms, the ones who cannot 
lawfully own or sell firearms, and leave those who are making a lawful 
product that can be and is used safely day in and day out out of the 
picture.
  Indeed, the effect of this amendment, I submit to my colleagues, is 
to undermine the effect of the entire bill which would protect these 
lawful manufacturers from frivolous litigation when their product is 
misused by a criminal and causes harm to some person. So I urge my 
colleagues to reject it, and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. LEVIN. I yield 5 minutes to the Senator from Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my colleagues, and I thank the 
managers for the courtesy they showed us in the course of managing this 
bill.
  I rise, as I did in the previous consideration of this bill, to 
support my colleague from Michigan. I do so because I basically want to 
be counted among those who are trying to bring a measure of relief to 
those professional people, such as doctors and educators, a whole list 
of people I enumerated last night when I addressed this bill on the 
Senate floor, who need help. In my judgment, Senator Levin--both of us 
are lawyers--is reaching back to the very fundamentals of the common 
law. These standards which the Senator wishes to have in this bill are 
the same standards that have withstood the test of time in court 
litigation from the very beginning of the judicial process, indeed in 
England and in our country. It is for that reason that I support it.
  I also draw the attention of my colleagues to my amendment, which is 
not pending, but as I understand, it is filed at the desk, amendment 
No. 1625. I rise at this time to speak to it because it really 
addresses, in a very narrow way, one of the ultimate goals of the 
Senator from Michigan.
  My concern is that the gun dealers across America need some 
protection themselves in this legislation. Ninety-nine percent are 
honest, law-abiding citizens. Yet they are subjected to the problems of 
our society today; namely, people can come in and steal from them.
  My amendment adds to the bill, which has a provision in it on page 8 
of the exclusions, and it would simply say, in actions brought against 
a gun dealer, a dealer which has a record of misconduct, negligence, 
and other types of criteria should not be entitled to the exemptions 
provided by this piece of legislation. So I want to be supportive. It 
protects those dealers who are trying to act in a lawful way who may 
have an accident, for some reason, and it does clearly remove from the 
protection of this bill dealers such as the one the Senator cited in 
the sniper case which struck my State of Virginia and Maryland and the 
District and paralyzed our businesses. People were afraid to go out on 
the street at night to conduct their ordinary affairs of life because 
of the threats.
  That was a stolen weapon from a gun dealer that, for one reason or 
another, allowed some 200 weapons to disappear from the shelves of that 
store or inventory over a period of a year or two. That dealer, in my 
judgment, would be protected as it now stands, unless the provisions 
comparable to perhaps those from the Senator from Michigan or in my 
amendment are brought to the attention of the Senate. At some time, I 
will arduously try to get my amendment in that status--I believe it is 
germane--that it can be considered by this body, as is the amendment of 
the Michigan Senator now being reviewed.
  So I say to my distinguished manager, I hope that whatever procedure 
by which you hereby determine such amendments can be heard--others 
not--that mine, which I understand is germane, can be heard by the 
Senate at an appropriate time.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Idaho.
  Mr. CRAIG. Mr. President, I yield 6 minutes to the Senator from 
Arizona.
  Mr. KYL. I thank the Senator. I thank the Chair.
  Let me get back to the Levin amendment which is our pending business. 
This amendment was tabled last year, and it should be again defeated or 
tabled. It is an amendment which would, in effect, be a poison pill for 
the entire bill because, in effect, what it says is if you allege gross 
negligence or recklessness, then the exemption the bill provides 
evaporates. So you are a lawyer. All you do is allege gross negligence 
or recklessness and, bingo, you are back in court again. So it totally 
undercuts the purpose of this legislation.
  Secondly, last year the bill didn't contain a definition of gross 
negligence or recklessness. This year that was corrected, at least 
after a manner of speaking. But what definition do we have of gross 
negligence, for example? The bill provides that we turn to section B of 
the Bill Emerson Good Samaritan Food Donation Act. The definition of 
gross negligence under the Bill Emerson Good Samaritan Food

[[Page S9226]]

Donation Act is totally different from the case law definition of any 
State in the Union. It is totally different from the settled or 
standard concept of gross negligence in tort law.
  Let me illustrate the difference. Under this bill, the term would 
mean: Voluntary and conscious conduct, including a failure to act by a 
person who at the time of the conduct knew that the conduct was likely 
to be harmful to the health or well being of another person.
  That is not gross negligence. Black's Law Dictionary captures the 
essence of the definition. It defines gross negligence as the 
intentional failure to perform a manifest duty in reckless disregard of 
the consequences as affecting the life or property of another. And it 
consists of the conscious and voluntary act or omission which is likely 
to result in grave injury when in the face of clear and present danger 
of which the alleged tortfeasor is aware. And the standard, obviously 
in comparison to the Levin standard to be inserted into the statute 
this year, is quite different. Even if the judge were to look to the 
standard itself, he would find that that standard is significantly 
different than the usual concept of the term and does not rise, in any 
meaningful way, to what any of us who have practiced tort law would 
understand gross negligence to mean.
  Third, this is a highly regulated industry by law, by Federal law and 
State law and even some local laws. And most of the acts that would 
meet the definition of gross negligence would already be in violation 
of law. And if they are in violation of law, they are not exempted from 
this legislation. We don't try to exempt any gun manufacturer for 
conduct which is in violation of law. So by definition that would be an 
exemption from the provisions of the bill, if it becomes law, and 
therefore would not need to be included.
  The bottom line here is that if there really is a problem, that is to 
say, the conduct is so bad that it is a violation of law, no lawsuit is 
precluded under our bill in any way. And if it doesn't rise to that 
level, then it should not be considered to be within the concept of 
gross negligence under that term as it has always been applied in tort 
law. The definition that is to be substituted this year is clearly not 
a definition most of us would deem appropriate under these 
circumstances.

  So in fact if the gross negligence or reckless conduct of a person 
was the proximate cause of death or injury--that is the allegation--you 
are in court irrespective of this bill, and clearly it totally 
undercuts the purpose of the bill.
  So, Mr. President, I urge that our colleagues vote against the Levin 
amendment or table it, as was done last year, and recognize that this 
is designed to totally undercut the bill and, for that reason, would 
not be an appropriate amendment to be adopted.
  The PRESIDING OFFICER. Who yields time? The Senator from Idaho.
  Mr. CRAIG. How much time remains for the proponents?
  The PRESIDING OFFICER. The Senator from Idaho has 18\1/2\ minutes, 
the Senator from Michigan has 8 minutes and 11 seconds.
  Mr. CRAIG. The Senator from Idaho has how much time remaining?
  The PRESIDING OFFICER. The Senator from Idaho has 18\1/2\ minutes.
  Mr. CRAIG. I thank the Chair. I thank the Senator from Arizona for 
his statement.
  I yield 10 minutes to the Senator from South Carolina.
  Mr. GRAHAM. I thank the Senator for yielding.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. The reason I am supporting this bill, from a 30,000-foot 
view of it rather than getting down into the weeds, is I think this is 
a defining ``cultural moment'' in the history of our country--when 
under what circumstances can someone get in your wallet, hold you 
responsible financially for an event, no matter how unfortunate it 
might be. Generally speaking, in the law of negligence, the first thing 
you have to establish in civil liability is a duty. You have to prove 
that the person being sued had a duty and violated that duty and the 
violation was the proximate cause and the damages flow from that event.
  Here is what this bill does not do. It does not let a gun 
manufacturer off the hook from the duty of producing a reliable and 
safe gun. If you defectively produce a weapon, you can be held liable. 
It doesn't let a seller or a distributor off the hook for violating a 
statute or making a sale illegally because it says, if you violate the 
law that exists, then you have broken a duty. Duty can be established 
by relationships. It can be established by a statute. So this bill does 
not allow someone to sell a gun without following the procedures that 
we have set out to sell a gun. It doesn't allow someone to make a gun 
that is unsafe. You are on the hook, and you can be held accountable 
based on a simple negligence theory or a negligence per se theory, if 
you violate a specific statute during the sale of a gun or 
manufacturing of a gun.
  But what this bill prevents, and I think rightfully so, is 
establishing a duty along this line: That you have a responsibility, 
even if you do a lawful transaction or make a safe gun, for an event 
that you can't control, which is the intentional misuse of a weapon in 
a criminal fashion by another person.
  That is the heart of this bill. It doesn't relieve you of duties that 
the law imposes upon you to safely manufacture and to carefully sell. 
But we are not going to extend it to a concept where you are 
responsible, after you have done everything right, for what somebody 
else may do who bought your product and they did it wrong and it is 
their fault, not yours. So it does not matter whether you use a gross 
negligence standard, a simple negligence standard, you have blown by 
the concept of the bill in my opinion. The debate should be, is there a 
duty owed in this country for people who follow the law, manufacture 
safely, sell within the confines of the laws we have written at the 
State and Federal level to the public at large if an injury results 
from the criminal act of another? If that ever happens, this country 
has made a major change in the way we relate to each other and a major 
change in the law.
  There are other efforts to make this happen. There is an effort, on 
the part of some, to hold food manufacturers liable if you choose to 
buy a lawful product and misuse it by eating too much of it, creating a 
duty on the part of the people who sell food to manage your own 
behavior, the behavior of another. Once you leave the store, if you 
follow this out, they should go home with you and make sure you are 
doing everything else right.
  That to me is why this amendment from my good friend from Michigan 
should not be adopted and why we need to pass this bill. I am all for 
legal duties where there is a reason for them to exist. Safely 
manufacture a gun? You better believe it. If you put it in a stream of 
commerce and it hurts somebody and it is your fault, you will have a 
day in court.
  If you sell a gun and you don't do it right and you have it in the 
wrong hands, then you will have your day in court.
  The bill even has a negligent provision. If you negligently entrust a 
weapon to someone you know or should know should not have that gun, you 
will have your day in court. What we are not going to do, under a gross 
negligence or simple negligence standard, is create a duty on the part 
of sellers and manufacturers for an event that they can't control, 
which is the intentional misuse of a weapon to commit a crime or 
something akin to that, something that you can't control, nor should 
you be required to be responsible for the actions of others in that 
area of life. If we ever hold people who make products accountable for 
the misdeeds and the mistakes of others when there is no rational 
relationship or no rational ability to control it, then we have 
fundamentally changed America. This bill is very important, I say to 
Senator Craig. We have to pass this bill and stop this kind of legal 
reasoning because it is going to undermine our country.
  With that, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Michigan.
  Mr. LEVIN. Mr. President, I yield myself 3 minutes. I wonder if 
Senator Graham might wait. I want to comment on his remarks, and I 
don't want to do this without him being aware of it.

[[Page S9227]]

  The good Senator said that if you have done everything right, you 
should not be held accountable. Of course. That is a given. I accept 
that. But what if you have been reckless, what if you have been grossly 
negligent and that gross negligence--by the way, I am perfectly happy 
to accept the Black's Law Dictionary definition if my good friend from 
Arizona wants to substitute that for the definition in this bill. That 
is not the issue. But if the gross negligence and recklessness is a 
proximate cause of injury, why should the manufacturer or dealer be 
immunized then?
  What the Senator from South Carolina says is a truism; of course you 
should not be held accountable for the wrongdoing of other people. The 
question is whether you should be held accountable for your own 
recklessness, your own gross negligence. We should not immunize people 
against their own negligence. That is the issue. That is the only issue 
of this amendment. We don't see but what this bill does is eliminate 
rights, rights of people to get compensation against others who have 
been a cause of their death or injury. That is what the bill does, and 
that is what is wrong. There is no other industry, no other industry 
has that immunity. But this industry would be given that immunity for 
the first time that I know of in American history or tort history. You 
can perform, perpetrate an act of gross negligence or reckless conduct 
and not be held accountable. Now, if you commit a crime you will be 
held accountable, or if you negligently entrust, you will be held 
accountable, but all the other acts of negligence, which are 
perpetratable, are going to be immunized. It is not a matter, by the 
way, of alleging gross negligence or recklessness. It is a matter of 
proving recklessness or gross negligence, because the amendment says, 
not that the allegation is enough; it is that if you show gross 
negligence or recklessness caused your death or injury, you must have, 
still, a cause of action.

  I am happy to yield at this time to my dear friend from Illinois.
  I don't know how much time I have remaining.
  The PRESIDING OFFICER. The Senator from Michigan has 5 minutes 15 
seconds.
  Mr. LEVIN. I am happy to yield 5 minutes. Does the Senator from Rhode 
Island want any time?
  Mr. REED. No. Go ahead.
  Mr. LEVIN. I yield 5 minutes.
  Mr. DURBIN. I thank my colleague from Michigan.
  Let me describe a tragedy, a tragedy which hits a little close to 
home for me. My grandson is 9 years old.
  This is a tragedy involving a 10-year-old little boy in Philadelphia. 
On February 11 of last year, this little boy, Faheem, was on his way to 
school, walking from home to school. As he came into the schoolyard 
through the gates, a gang member came up and shot him in the face. He 
remained conscious for a short period of time, lapsed into a coma, and 
died 5 days later. That is a tragedy.
  The reason I bring it up is because the amendment of Senator Levin, 
before us, addresses this tragedy. Where did the gun from come? It 
turns out it was in the hands of a gang member, one of these drug gang 
kids, crazed, trying to find money, shooting in every direction. He had 
the gun in his hand.
  The obvious question to be asked is, Where did this drug gang member 
get his gun? We know where he got it. He got it through the American 
Gun and Lock Company of Girard Avenue, in Philadelphia, PA.
  Did he buy it there? No. What happened was one of the gang members 
walked into this gun store with his girlfriend and he said, My 
girlfriend wants to buy some guns.
  Why did he say his girlfriend? Because the gang member had a criminal 
record. He couldn't buy the guns. So the gun owner, the gun store 
owner, sees the girlfriend buying the guns for the gang member standing 
next to her, and decides he is going to charge a handling fee because 
she is a third-party purchaser.
  They knew what was going on. The girl friends buy guns for the gangs 
to use on the street. So the store sold the gun, clearly understanding 
what was going on here, even charging a handling fee for it. It gets on 
the street in the hands of a gang member and a 10-year-old little boy 
walking into the schoolyard is shot in the face and killed.
  So the question is this: Did the gun dealer do anything wrong? That 
is the question. I think it is a legitimate question. I think the gun 
dealer knew exactly what was going on here. The gun dealer wanted to 
make some money. The gun dealer was willing to look beyond the obvious 
criminal standing in front of him to the straw purchaser, this 
girlfriend, and let the girlfriend buy the gun and even charge a 
handling fee. What Senator Levin's amendment says is this is gross 
negligence. If you did not know this gun was going to be used in a 
crime, you were certainly negligent in allowing this to occur on your 
premises and we ought to be able to go to court. The family of this 
little boy who was murdered on the street should be able to go to court 
and say that gun dealer should be held responsible.
  Do you know what? This bill before us will never allow that gun 
dealer to be held responsible for that misconduct. He sold the gun to 
the girlfriend of the gang member. The gun hits the street. The gun 
kills the little boy. And the courthouse doors will be closed to that 
family because of this bill unless we pass the amendment of Senator 
Levin.
  That is what this is all about. If you think that is fair to let that 
gun dealer off the hook and to say to the family of that 10-year-old 
boy, ``We are sorry; you don't have the right to go to court and hold 
that gun dealer personally responsible,'' then you naturally would have 
to oppose the amendment of Senator Levin. But if you think this 
business, as every business in America, has a responsibility to do the 
right thing, there is a standard of care in the products they sell and 
the way they sell them, that this company, like every other company in 
America, should be held responsible for their own misconduct, then I 
suggest you should vote for the amendment of Senator Levin.
  I retain the remainder of my time and yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Idaho.
  Mr. CRAIG. Mr. President, might I inquire how much time remains on 
both sides?
  The PRESIDING OFFICER. There remains 13 minutes 19 seconds for the 
Senator from Idaho, 36 seconds for the Senator from Michigan.
  Mr. CRAIG. Mr. President, we have heard some of the most fascinating 
arguments in relation to the Levin amendment on both sides. I think it 
is clear if the Levin amendment were to become part of this legislation 
and this legislation were to become law, it would be relatively 
meaningless as to where we are in relation to the kind of junk or 
dilatory lawsuits that are currently being filed against gun 
manufacturers and gun dealers who not only produce a legal product to 
the market but sell it in the legal context.
  It is important that we understand the arguments about gross 
negligence and reckless conduct. The idea that has been expressed by 
the Senator from Arizona, the Senator from Texas, and certainly the 
Senator from South Carolina, is that once you argue that, then 
obviously as an attorney the process must prove you are either right or 
wrong. In so arguing it, and in the effort of making proof, you have in 
large part destroyed the intent, of the legislation.
  Mr. GRAHAM. Will the Senator yield?
  Mr. CRAIG. I am more than happy to yield to the Senator from South 
Carolina.
  Mr. GRAHAM. This has been a fascinating legal discussion. May I have 
a minute or two to answer?
  Mr. CRAIG. I will allow the Senator to take as much time as he 
desires.
  Mr. GRAHAM. I missed it. I think the fact pattern goes along the 
lines of a criminal goes in with a girlfriend or some other person and 
tries to purchase a weapon. What responsibility would someone have 
there?
  If the dealer or the seller or the person in question had a 
reasonable opportunity to know a crime was afoot, or this was a sham 
deal, then I argue the bill would cover it under negligent entrustment. 
But here is what we would not want to do, in my opinion. You wouldn't 
want to hold the seller or the distributor liable if he had no reason 
to understand that a criminal conspiracy by two people he is not 
responsible for

[[Page S9228]]

was about to happen. Because that would be unfair. But if he had a 
reason to know, a reasonable opportunity to know, then that would be a 
totally different scenario.
  That is a classic example of what we do not want to do. If a person, 
about to make a sale, should have known something was afoot to violate 
the law, they can be held responsible. But if you as a dealer are a 
victim of a criminal conspiracy you had no part or knowledge of, we are 
not going to make you responsible. That is the essence of this bill. 
Because to do so would undo legal concepts that stood 200 years, would 
put people out of business, and makes no sense.
  I yield back to Senator Craig.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, over the last good number of years, law-
abiding gun manufacturers in this country producing a legal product to 
the market, law-abiding gun dealers performing within the confines of 
the Federal firearms licensing process, have spent over $225 million 
defending themselves from the very arguments the Senator from Michigan 
would like to have continued.
  The Senator from South Carolina has well spelled out that there is a 
duty and there is a responsibility. But if that duty is taken beyond 
your ability to know it, to understand it, to be able to act against 
it, then you ought not be responsible.
  We have gotten ourselves into a very litigious society. So in a way 
it has cost our society more than almost any other society in the 
developed world today. Why? Because we would like to shove blame off 
onto someone else. When society wrongs society, it has to be somebody 
else's fault besides the one who perpetrated the wrong. So we have 
attempted to reach back through law, time and time again. As a result--
we have heard it, whether it is the cost of an automobile or whether it 
is the cost of a firearm today or whether it is the cost of almost any 
consumer product--it is going to cost you more because somewhere the 
producers have to mount large amounts of money to pay their legal fees 
to fend off someone looking for an excuse to blame someone else for the 
action of someone who should have been responsible for themselves.
  That is the essence or the underlying construction of what has 
brought us to the floor today. This argument will not be argued in 
behalf of gun manufacturers. Over the course of the next several years 
it will be argued in behalf of a lot of law-abiding, producing 
Americans who have simply grown tired and fed up with the idea that 
they always have to be sued although what they are doing is legal, 
even though they are within the law. That is because somehow somebody 
used what they have made illegally, and as a result they should have 
known and they are responsible because surely the person who 
perpetrated the crime cannot be held responsible because society either 
produced them or the environment in which they became irresponsible was 
a societal responsibility.

  Oh, my goodness, where do we rest the blame? I think many of our 
parents suggested that we were responsible for our actions and we would 
have to pay the price. But the argument here is quite the opposite, 
that someone who might have a deep pocket somewhere down the road, 
because what they produced is a legal product for the market which was 
then used in a criminal act, should pay that price. And the criminal--
not suggesting they would go free, but certainly suggesting they can't 
afford to pay, so someone else ought to pay, and the argument goes on 
and on.
  You have heard my arguments over the course of the last 48 hours. We 
are the only nation who doesn't have a government-owned weapons 
factory. It has always been a product of the private market. If we 
choose to run them out of our country, then all of the firearms our men 
and women in the military use, our law enforcement community uses, our 
law-abiding citizens own, will be made in some other country.
  I do not believe that is where our country wants to go, and it is 
clear that is not where a majority of the Senate wants to go. I do 
believe the Senate, as reflected by its vote on the cloture motion to 
proceed and ultimately get us to this bill, is reflective of society as 
a whole.
  I hope a majority of the Senate will oppose the Levin amendment. I do 
not believe you can suggest you are going to correct a problem in one 
instance and then open another door and allow a death by a thousand 
cuts, as obviously would occur here, if that case were the one we are 
arguing.
  Mr. President, may I inquire as to the time remaining?
  The PRESIDING OFFICER. There remains 5 minutes 42 seconds.
  Mr. CRAIG. Mr. President, I yield the next 5 minutes to the Senator 
from Utah.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Utah.
  Mr. HATCH. I thank my colleague. He has made very strong arguments 
here. Nobody who is thinking should vote for this amendment.
  I rise today to speak against this amendment No. 1623, an amendment 
which, in my view, would have the effect of gutting this gun liability 
bill. This amendment, if passed, could actually expand the number of 
lawsuits against gun makers and sellers dramatically. This is because 
the definition of gross negligence referenced in the amendment 
eliminates the requirement that a duty of care exists in order to be 
negligent in one's actions toward another.
  As any of us who has been to law school knows, a duty toward another 
is the first element of any tort. But this amendment wipes out this 
element from the definition of gross negligence. In other words, this 
amendment would allow anti-gun lawyers to easily claim that gun makers 
and sellers know their products are ``likely to be harmful,'' without 
having to prove any duty or clear connection to the injured party.
  This turns common law tort principles on its head. This is nothing 
more than a calculated effort by opponents of this legislation to 
expand the reach of this doctrine to get at conduct that had not 
previously been covered.
  Furthermore, this amendment is simply not needed. Virtually any act 
that would meet the definition of gross negligence referenced in this 
amendment would already be a violation of Federal, State or local law, 
and therefore would not receive the protection of this law anyway.
  This amendment is an attempt to undermine this legislation. We 
defeated this amendment soundly last year--soundly. I urge my 
colleagues to vote to defeat it again.
  I thank my distinguished colleague and friend from Idaho who has led 
this fight courageously and in every way with the highest of standards. 
Frankly, this is one that should not see the light of day. I hope our 
colleagues will vote against it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. I am prepared to yield back the balance of our time if the 
Senator from Michigan is.
  Mr. LEVIN. I believe I have half a minute remaining, and I would like 
to use it.
  The PRESIDING OFFICER. The Senator has 36 seconds.
  Mr. LEVIN. Mr. President, we have been told people should not be held 
accountable for the wrongdoing of others; that is true. The question is 
whether they should be held accountable for their own wrongdoing.
  This amendment would make sure that gun dealers and manufacturers--
such as any other dealer or manufacturer--could be held accountable for 
their own wrongdoing. That is the issue. It is very clear in the 
wording of the amendment.
  I ask unanimous consent the letter from 75 law professors describing 
what this bill would do in terms of eliminating responsibility for 
manufacturers' and gun dealers' own conduct be printed in the Record.

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        The University of Michigan


                                                   Law School,

                                                    Ann Arbor, MI.
       Dear Senators and Representatives: As a professor of law at 
     the University of Michigan Law School, I write to alert you 
     to the legal implications of S. 397 and H.R. 800, the 
     ``Protection of Lawful Commerce in Arms Act.'' My colleagues, 
     who join me in signing this letter, are professors at law 
     schools around the country. This bill would represent a 
     substantial and radical departure from traditional principles 
     of American tort law. Though described as an effort to limit 
     the unwarranted expansion of tort liability, the bill would 
     in fact represent a dramatic

[[Page S9229]]

     narrowing of traditional tort principles by providing one 
     industry with a literally unprecedented immunity from 
     liability for the foreseeable consequences of negligent 
     conduct.
       S. 397 and H.R. 800, described as ``a bill to prohibit 
     civil liability actions from being brought or continued 
     against manufacturers, distributors, dealers, or importers of 
     firearms or ammunition for damages resulting from the misuse 
     of their products by others,'' would largely immunize those 
     in the firearms industry from liability for negligence. This 
     would represent a sharp break with traditional principles of 
     tort liability. No other industry enjoys or has ever enjoyed 
     such a blanket freedom from responsibility for the 
     foreseeable and preventable consequences of negligent 
     conduct.
       It might be suggested that the bill would merely preclude 
     what traditional tort law ought to be understood to preclude 
     in any event--lawsuits for damages resulting from third party 
     misconduct, and in particular from the criminal misuse of 
     firearms. This argument, however, rests on a fundamental 
     misunderstanding of American tort law. American law has never 
     embraced a rule freeing defendants from liability for the 
     foreseeable consequences of their negligence merely because 
     those consequences may include the criminal conduct of third 
     parties. Numerous cases from every American jurisdiction 
     could be cited here, but let the Restatement (Second) of 
     Torts suffice:


  Sec. 449. TORTIOUS OR CRIMINAL ACTS THE PROBABILITY OF WHICH MAKES 
                       ACTOR'S CONDUCT NEGLIGENT

       If the likelihood that a third person may act in a 
     particular manner is the hazard or one of the hazards which 
     makes the actor negligent, such an act whether innocent, 
     negligent, intentionally tortious, or criminal does not 
     prevent the actor from being liable for harm caused thereby. 
     (emphasis supplied)
       Similarly, actors may be liable if their negligence enables 
     or facilitates foreseeable third party criminal conduct.
       Thus, car dealers who negligently leave vehicles 
     unattended, railroads who negligently manage trains, hotel 
     operators who negligently fail to secure rooms, and 
     contractors who negligently leave dangerous equipment 
     unguarded are all potentially liable if their conduct creates 
     an unreasonable and foreseeable risk of third party 
     misconduct, including illegal behavior, leading to harm, In 
     keeping with these principles, cases have found that sellers 
     of firearms and other products (whether manufacturers, 
     distributors or dealers) may be liable for negligently 
     supplying customers or downstream sellers whose negligence, 
     in turn, results in injuries caused by third party criminal 
     or negligent conduct. In other words, if the very reason 
     one's conduct is negligent is because it creates a 
     foreseeable risk of illegal third party conduct, that illegal 
     conduct does not sever the causal connection between the 
     negligence and the consequent harm. Of course, defendants are 
     not automatically liable for illegal third party conduct, but 
     are liable only if--given the foreseeable risk and the 
     available precautions--they were unreasonable (negligent) in 
     failing to guard against the danger. In most cases, moreover, 
     the third party wrongdoer will also be liable. But, again, 
     the bottom line is that under traditional tort principles a 
     failure to take reasonable precautions against foreseeable 
     dangerous illegal conduct by others is treated no differently 
     from a failure to guard against any other risk.
       S. 397 and H.R. 800 would abrogate this firmly established 
     principle of tort law. Under this bill, the firearms industry 
     would be the one and only business in which actors would be 
     free utterly to disregard the risk, no matter how high or 
     foreseeable, that their conduct might be creating or 
     exacerbating a potentially preventable risk of third party 
     misconduct. Gun and ammunition makers, distributors, 
     importers, and sellers would, unlike any other business or 
     individual, be free to take no precautions against even the 
     most foreseeable and easily preventable harms resulting from 
     the illegal actions of third parties. And they could engage 
     in this negligent conduct persistently, even with the 
     specific intent of profiting from sales of guns that are 
     foreseeably headed to criminal hands. Under this bill, a 
     firearms dealer, distributor, or manufacturer could park an 
     unguarded open pickup truck full of loaded assault rifles on 
     a city street corner, leave it there for a week, and yet be 
     free from any negligence liability if and when the guns were 
     stolen and used to do harm. A firearms dealer, in most 
     states, could sell 100 guns to the same individual every day, 
     even after the dealer is informed that these guns are being 
     used in crime--even, say, by the same violent street gang.
       It might appear from the face of the bill that S.397 and 
     H.R. 800 would leave open the possibility of tort liability 
     for truly egregious misconduct, by virtue of several 
     exceptions set forth in Section 4(5)(i). Those exceptions, 
     however, are in fact quite narrow, and would give those in 
     the firearm industry little incentive to attend to the risks 
     of foreseeable third party misconduct.
       One exception, for example would purport to permit certain 
     actions for ``negligent entrustment.'' The bill goes on, 
     however, to define ``negligent entrustment'' extremely 
     narrowly. The exception applies only to sellers, for example, 
     and would not apply to distributors or manufacturers, no 
     matter how egregious their conduct. Even as to sellers, the 
     exception would apply only where the particular person to 
     whom a seller supplies a firearm is one whom the seller knows 
     or ought to know will use it to cause harm. The ``negligent 
     entrustment'' exception would, therefore, not permit any 
     action based on reckless distribution practices, negligent 
     sales to gun traffickers who supply criminals (as in the 
     above example), careless handling of firearms, lack of 
     security, or any of a myriad potentially negligent acts.
       Another exception would leave open the possibility of 
     liability for certain statutory violations, variously 
     defined, including those described under the heading of 
     negligence per se. Statutory violations, however, represent 
     just a narrow special case of negligence liability. No 
     jurisdiction attempts to legislate standards of care as to 
     every detail of life, even in a regulated industry; and there 
     is no need. Why is there no need? Because general principles 
     of tort law make clear that the mere absence of a specific 
     statutory prohibition is not carte blanche for unreasonable 
     or dangerous behavior. S. 397 and H.R. 800 would turn this 
     traditional framework on its head; and free those in the 
     firearms industry to behave as carelessly as they would like, 
     so long as the conduct has not been specifically prohibited. 
     If there is no statute against leaving an open truckload of 
     assault rifles on a street corner, or against selling 100s of 
     guns to the same individual, under this bill there could be 
     no tort liability. Again, this represents radical departure 
     from traditional tort principles.
       My aim here is simply to provide information, and insure 
     that you are not inadvertently misled about the meaning and 
     scope of S. 397 and H.R. 800. As currently drafted, this Bill 
     would not simply protect against the expansion of tort 
     liability, as has been suggested, but would in fact 
     dramatically limit the application of longstanding and 
     otherwise universally applicable tort principles. It provides 
     to firearms makers and distributors a literally unprecedented 
     form of tort immunity not enjoyed or even dreamed of by any 
     other industry.
           Sincerely,
                                                 Sherman J. Clark.
       Professor Sherman J. Clark, University of Michigan Law 
     School; Professor Richard L. Abel, UCLA Law School; Professor 
     Barbara Bader Aldave, University of Oregon School of Law; 
     Professor Mark F. Anderson, Temple University Beasley School 
     of Law; Professor Emeritus James Francis Bailey, III Indiana 
     University School of Law; Professor Elizabeth Bartholet, 
     Harvard Law School; Professor Peter A Bell, Syracuse 
     University College of Law; Professor Margaret Berger, 
     Brooklyn Law School; Professor M. Gregg Bloche, Georgetown 
     University Law Center; Professor Michael C. Blumm, Lewis and 
     Clark Law School; Professor Carl T. Bogus, Roger Williams 
     University School of Law; Professor Cynthia Grant Bowman, 
     Northwestern University School of Law; Director of the 
     MacArthur Justice Center and Lecturer in Law, Locke 
     Bowman, University of Chicago Law School; Professor Scott 
     Burris, Temple University Beasley School of Law; Professor 
     Donna Byrne, William Mitchell College of Law; Professor 
     Emily Calhoun, University of Colorado School of Law; 
     Professor Erwin Chemerinsky, Duke Law School; Associate 
     Clinical Professor Kenneth D. Chestek, Indiana University 
     School of Law; Associate Professor Stephen Clark, Albany 
     Law School; Professor Marsha N. Cohen, University of 
     California Hastings College of the Law; Professor Anthony 
     D'Amato, Northwestern University School of Law; Professor 
     John L. Diamond, University of California Hastings College 
     of Law; Professor David R. Dow, University of Houston Law 
     Center; Professor Jean M. Eggen, Widener University School 
     of Law; Associate Professor Christine Haight Farley, 
     American University, Washington College of Law; Associate 
     Professor Ann E. Freedman, Rutgers Law School--Camden.
       Professor Gerald Frug, Harvard Law School; Professor Barry 
     R. Furrow, Widener University School of Law; Associate 
     Clinical Professor Craig Futterman, University of Chicago Law 
     School; Professor David Gelfand, Tulane University Law 
     School; Professor Phyllis Goldfarb, Boston College Law 
     School; Professor Lawrence Gostin, Georgetown University Law 
     Center; Professor Michael Gottesman, Georgetown University 
     Law Center; Professor Stephen E. Gottlieb, Albany Law School; 
     Professor Phoebe Haddon, Temple University Beasley School of 
     Law; Professor Jon D. Hanson, Harvard Law School; Professor 
     Douglas R. Heidenreich, William Mitchell College of Law; 
     Professor Kathy Hessler, Case Western Reserve University 
     School of Law; Professor Eric S. Janus, William Mitchell 
     College of Law; Professor Sheri Lynn Johnson, Cornell Law 
     School; Professor David J. Jung, University of California 
     Hastings College of Law; Associate Professor Ken Katkin, 
     Salmon P. Chase College of Law, Northern Kentucky University; 
     Professor David Kairys, Temple University Beasley School of 
     Law; Professor Kit Kinports, University of Illinois School of 
     Law; Professor Martin A. Kotler, Widener University School of 
     Law; Professor Baily Kuklin, Brooklyn Law School; Professor 
     Arthur B. LaFrance, Lewis and Clark Law School; Professor 
     Sylvia A. Law, NYU School of Law; Professor Ronald Lasing, 
     Lewis and Clark Law School; Professor Robert Justin Lipkin, 
     Widener University School of Law; Professor Hugh C. Macgill, 
     University of Connecticut School of Law.
       Professor Mari J. Matsuda, Georgetown University Law 
     Center; Associate Professor Finbarr McCarthy, University 
     Beasley

[[Page S9230]]

     School of Law; Director (Retired Professor) Christine M. 
     McDermott, Randolph County Family Crisis Center, North 
     Carolina; Professor Joan S. Meier, George Washington 
     University Law School; Professor Naomi Mezey, Georgetown 
     University Law Center; Professor Eben Moglen, Columbia Law 
     School; Professor Dawn C. Nunziato, George Washington 
     University Law School; Professor Michael S. Perlin, New York 
     Law School; Clinical Professor Mark A. Peterson, Northwestern 
     School of Law, Lewis and Clark College; Professor Mark C. 
     Rahdert, Temple University Beasley School of Law; Professor 
     Denise Roy, William Mitchell College of Law; Professor Joyce 
     Saltalamachia, New York Law School; Clinical Assistant 
     Professor David A. Santacroce, University of Michigan School 
     of Law; Professor Niels Schaumanm, William Mitchell College 
     of Law; Professor Margo Schlanger, Washington University 
     School of Law; Professor Marjorie M. Shultz, University of 
     California Boalt School of Law; Senior Lecturer Stephen E. 
     Smith, Northwestern University School of Law; Professor Peter 
     J. Smith, George Washington University Law School; Professor 
     Norman Stein, University of Alabama School of Law; Professor 
     Frank J. Vandall, Emory University School of Law; Professor 
     Kelly Weisberg, University of California Hastings College of 
     the Law; Professor Robin L. West, Georgetown University Law 
     Center; Professor Christina B. Whitman, University of 
     Michigan School of Law; Professor William M. Wiecek, Syracuse 
     University College of Law; Professor Bruce Winick, University 
     of Miami School of Law; Professor Stephen Wizner, Yale Law 
     School; Professor William Woodward, Temple University Beasley 
     School of Law.

  Mr. CRAIG. I am prepared to yield back the remainder of my time.
  I move to table the motion and I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. The following Senator was necessarily absent: the 
Senator from New Mexico (Mr. Domenici).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 37, as follows:

                      [Rollcall Vote No. 208 Leg.]

                                YEAS--62

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Dorgan
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich

                                NAYS--37

     Akaka
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Corzine
     Dayton
     DeWine
     Dodd
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Reed
     Sarbanes
     Schumer
     Stabenow
     Warner
     Wyden

                             NOT VOTING--1

       
       Domenici
       
  The motion was agreed to.
  Mr. CRAIG. Mr. President, I move to reconsider the vote and to lay 
that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. CRAIG. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I believe the legislation before us 
today is a good tort reform bill. It deals with a discrete area of 
abuse in our legal system. We in this Congress have the responsibility 
to monitor our legal system. If it is not functioning well, we ought to 
deal with it. It is a practical act to protect manufacturers and 
sellers of a lawful item, and it has constitutional implications 
because the destruction of our firearms industry in America indeed 
would implicate and undermine the constitutional right Americans have 
of keeping and bearing arms. It is good for jobs.
  We know American manufacturers are under siege from lawsuits, and we 
could end up losing an entire industry, which is a pretty big industry. 
It is good for our police and national defense; that is where they get 
their firearms. The Secretary of Defense wrote us a letter indicating--
actually, the legal counsel wrote the letter to say they support it 
because they are concerned about the manufacturing capability of 
firearms used by our military. The same companies fighting these suits 
are also the companies that produce firearms for the military and our 
police forces.
  It is good because it restores the historic principles of what 
liability should be in our country. Where and how should one be liable? 
What acts can justify someone coming and taking your property? What 
kind of acts of wrongdoing do you have to commit before that is 
possible? Also, we might ask ourselves, what industry might be next? If 
we erode the classical defenses and principles that protect legitimate 
businesses in this case, what business might be next? I was pleased to 
hear that we achieved a bipartisan consensus, it seems, with 
61 cosponsors for the legislation. I had hoped we would move it through 
rather rapidly. I knew a good number of Senators cared deeply about it 
and did not approve of it, and they wanted to speak about it. But the 
truth of the matter is, this is taking quite a long time. We have had a 
filibuster even on a motion to proceed to the bill, which included 30 
hours of post-cloture debate on that, and 66 Senators voted to have 
cloture and bring this bill up on the floor for debate. So we have 
good, strong, bipartisan support for moving forward with this 
legislation.

  I know the majority leader is committed. We can complete it, even if 
we have to go into the weekend. Hopefully, that won't happen, but I am 
prepared to be here and I think most Senators are. After this amount of 
effort, let's complete this. We can see the end in sight. I urge that 
the discussions going on allow us to proceed more rapidly. I hope we 
will have good success on that.
  I believe the opposition to this legislation spins out of a hostility 
to firearms by some. If you look at it, it is mostly in the big cities 
where they are not familiar with hunting, outdoors, and recreational 
shooting. The emotional fervor for radically limiting the historic 
American right to keep and bear arms arises out of a fear of crime and 
a desire to be safe and, I think, a misunderstanding of the nature and 
character of decent, law-abiding citizens in this country who possess 
firearms and use them to hunt and for recreational purposes on a 
regular basis. But I understand crime is a big part of the objection to 
firearms. It is out of that fear and concern that we have mayors and 
cities passing laws that create strict liability, such as the District 
of Columbia. In a recent case that ruled against the Beretta Company, 
Beretta wrote us that if this law remains in effect, they could become 
liable for every murder using a Beretta handgun that may occur in 
Washington, DC, even though they may have lawfully sold the gun through 
a dealer in Alabama, Minnesota, Maine, or California. But if it ended 
up here some way by some criminal and somebody got shot, they have the 
ability to hold the manufacturer or the dealer liable for that. They 
become an insurer against criminal activity by criminals.
  It is not a sound principle of law. It cannot be defended on 
principle. That is what we are trying to curtail here--this utilization 
of the legal system, the court system, the lawsuit system, to effect a 
public policy end that has not been supported by the people and 
actually could threaten the ability to keep and bear arms and threaten 
an entire industry in our country. I understand what is bringing this 
up.
  I want to share some important things. What is causing crime? We 
don't know for sure. We know some of the causes. What can we do to deal 
with it? How can we utilize gun laws to reduce crime and violence and 
make

[[Page S9231]]

our communities safer, do the right thing? Does passing more and more 
burdensome laws and regulations that fall on lawful gun owners help 
reduce crime? I submit to you it does not.
  There are dramatic numbers that I think indicate the effectiveness of 
gun law prosecutions to reduce crime. When I came to the Senate in 
1997, I had been a U.S. attorney and, as such, prosecuted criminals who 
utilized guns and violated Federal gun law. I know the Presiding 
Officer has done that, too; he has been a prosecutor. He dealt with 
these Federal gun laws. What we did was focus on the law that dealt 
with criminal behavior, and we were aggressive about it. I remember 
coming up with a name for our project. We called it Project Triggerlock 
in, I guess, the late 1980s. We had a newsletter and we talked with all 
our sheriffs and local police about the new, tough Federal gun laws 
that crack down on the utilization of a gun during a criminal act, and 
the 5-year mandatory penalty without parole if you carry a firearm 
during a drug offense, or if you possess a firearm after having been 
convicted of a felony, you would go to jail and it would be without 
parole.
  I thought it was an effective thing and we worked hard to prosecute 
those cases. Then I was elected Alabama attorney general and then I 
came to the Senate. When I came here, there was one new gun law after 
another that attempted to restrict gun ownership and the ability to get 
guns. We were voting on them all the time. I began to say, what are we 
doing prosecutionwise with the laws we have? I began to inquire in the 
Judiciary Committee, of which I am a member. In 1997 when Attorney 
General Janet Reno or the division chief, or the head of the ATF came 
up, I began to ask questions.
  If you can see this chart, you begin to see where my concerns came 
from. Going along in the 1990s, in 1992 and 1993, there were 3,700 and 
3,800 gun prosecutions per year. They began to drop off 20 percent. By 
1996, they had fallen 20 percent, and by 1997, 20 percent. We began to 
ask questions about that and push this issue with the Attorney General. 
I raised it every time she came before the committee with her staff 
people. I think maybe that or other things happened that began to show 
a trend change. We started moving up a little bit. By 2000, we were 
back up to 6,000 gun prosecutions.
  President Bush campaigned on it. When John Ashcroft came up for his 
confirmation, I reminded him of the promise the President had made. I 
asked Attorney General Ashcroft: Will you make prosecution of gun 
crimes a high priority by the U.S. Department of Justice? He said: Yes, 
sir, I will. Now we have Attorney General Gonzales. Look at these 
numbers; they have doubled since 2000. We have 11,000 prosecutions per 
year now. Many of those carry significant time in jail. If a person 
carries a fully automatic weapon--a MAC-11 or a machine gun of some 
kind--during a drug trafficking offense, the penalty they suffer is 30 
years in jail without parole. We saw that happen all over Miami. People 
were shooting. There were gang wars, with machine guns that were used 
to shoot people down.
  These tough laws that were passed in the early 1980s cracked down. 
Now you don't see machine guns among drug dealers. In fact, because of 
these prosecutions you are seeing fewer and fewer drug dealers carrying 
guns and fewer other criminals carry guns because they know if they get 
caught, they will be sent to Federal jail without parole for a long 
time.
  I want to talk about that. Somewhere along in 1998, 1999, or 2000, we 
had before the Judiciary Committee the testimony of a very impressive 
U.S. attorney from Richmond, appointed by the Clinton administration. 
He was an African American. He had developed what he called Project 
Exile. I called it ``Project Trigger Lock with Steroids.'' It was a 
better plan than I had developed. He believed if you utilize these laws 
aggressively, you could save lives. He saw people in his community 
dying in shootouts and criminal fights, he believed, unnecessarily. So 
he started this project.

  He put up billboards that said: You use a gun, we will send you off 
for a long period of time. You will be exiled. You will go off to a 
Federal jail. You don't get to go to the county jail. You will go off 
to the Federal jail, 10 years without parole, 20 years without parole, 
depending on the offense. He had some dramatic results from that 
project.
  Mr. CRAIG. Will the Senator yield on that point?
  Mr. SESSIONS. I will be pleased, I say to the Senator from Idaho.
  Mr. CRAIG. Project Exile in Richmond, which the Senator referenced, 
in Richmond was a fascinating demonstration, as I think the Senator is 
pointing out. In the testimony of a person arrested for holding up a 7-
Eleven--he went in with a baseball bat; this is true evidence--when he 
was being questioned as to why he used a bat instead of a gun in the 
commission of a crime, he said, Because if I use a gun in the 
commission of a crime, I do time in a Federal jail, just as the Senator 
has spoken to. So he chose the baseball bat as his weapon and not the 
firearm. That happened in Richmond under Project Exile.
  Mr. SESSIONS. I could not agree more. The U.S. attorney in 
Philadelphia was aggressive on some of these cases, and they would make 
a big bust with State and local law enforcement and Federal officers. 
The criminals did not want to go to the Federal court. They were afraid 
they would go there and sort them out, and the ones who had the guns 
would be the ones sent to Federal court, and they would get tough time.
  Here are some of the numbers that occurred on Project Exile. From 
2000 to 2003, Federal gun crime prosecutions nationally increased 68 
percent. There is this perception that Republican administrations, 
because they are dubious and concerned about encroaching controls on 
the right of lawful Americans to have guns, that they are somehow soft 
on gun crime, that they do not care about people being victimized by 
crime.
  Nothing could be further from the truth, as these numbers will show. 
From 2000 to 2003, Federal gun prosecutions increased 68 percent. 
Between the year 2002 and fiscal year 2003, the number of Federal 
firearms prosecutions nationally increased nearly 24 percent. In 
Colorado, for example, under their Project Exile program, Federal 
firearm charges between 1999 and 2003 were brought against more than 
600 defendants, and in 365 of those cases that were completed, prison 
sentences were handed down totaling 18,671 months or 1,600 years.
  As these prosecutions have increased, the number of crimes where a 
gun is used has decreased. Surprise. Between 1999 and 2000 and between 
2001 and 2002, the violent crime victimization rate plunged 21 percent. 
Approximately 130,000 fewer Americans were victims of gun crime in 2001 
and 2002 than in 1999 and 2000.
  Project Exile began as a coordinated approach to fighting gun 
violence in the Richmond metropolitan area. That is where it started. 
It began in 1997 by a group of Federal prosecutors. They did a 
communitywide effort. In 1997, there were 140 homicides in Richmond. 
Just one year after the project was initiated, the overall murder rate 
dropped 36 percent, the number of firearm homicides dropped 41 percent, 
and robberies dropped by one-third.
  In 2000, 3 years after Project Exile was implemented in Richmond, 
there were only 72 homicides during the year 2000, close to a 50-
percent reduction. In its first year, Project Exile achieved the 
following: 372 persons were indicted for Federal gun violations, 440 
guns were seized, and 196 persons sentenced to an average of 55 months 
of imprisonment.
  There are three essential elements: Federal prosecution; integrated 
and coordinated partnership among local, State, and Federal law 
agencies; outreach for community involvement; and increased public 
awareness where we make sure the people in the community know in 
advance that if they carry a gun around while they are carrying on 
their criminal activities, they are in big trouble.
  One of the main reasons that Project Exile has been so successful is 
the campaign to educate citizens about the lengthy terms they would be 
facing. Billboards all over Richmond broadcast it: An illegal gun gets 
you 5 years in Federal prison. It resonated throughout the community. 
Police and criminals knew the stories of what was happening on the 
streets. The criminals would throw away guns when officers

[[Page S9232]]

approached. They would confess to almost anything, but they would not 
confess to having a gun, and they specifically referred to Project 
Exile. So we know it was having an impact.
  There are a number of important laws that are bread-and-butter laws 
that allow proper focus on criminal use of firearms. What I want to say 
is real simple. I don't want to overstate all of this, but it is 
significant. The simple fact is, it is not how many laws we pass, it is 
not whether we pass some convoluted law about this, that, or the other 
in Federal laws. It is whether we are allowing the gun prosecutions to 
drop 20 percent or whether they have gone up from under 4,000 to almost 
12,000, three times.
  If we maintain aggressive, systematic prosecution of dangerous 
criminals who carry firearms and they are sent to jail for long periods 
of time, we will protect the public. That is what I am saying. These 
other things make life more difficult for lawful gun owners and 
implicate, sometimes improperly, the constitutional right to keep and 
bear arms. But the real power of reducing crime, making our streets 
safer, resides in effective prosecution of these cases.
  I could not be more pleased to see some of the good numbers we are 
getting in terms of reducing crime.
  Look what is happening in States. It further amplifies what I have 
said. The overall homicide rate in jurisdictions that have the most 
severe restrictions on firearms purchases and ownership--let's look at 
this. Let's look at the homicide rate on the States that have the 
toughest firearm purchase laws, States that make it the hardest to buy 
a firearm: California, Illinois, Maryland, New Jersey, New York, and 
Washington, DC. Their homicide rate is 23 percent higher than the rest 
of the country.

  The Federal Gun Control Act of 1968 imposed unprecedented 
restrictions on gun manufacturers, dealers, and owners. However, in the 
5 years after its enactment, the national homicide rate averaged 50 
percent higher than in the 5 years before the bill was enacted. The 
national homicide rate was 75 percent higher 10 years after the 
enactment of the Federal Gun Control Act, and 81 percent higher after 
15 years. So passing a law that is not effectively prosecuted--not 
aggressively, systematically prosecuted, to the extent the criminals 
know you mean business--does not mean anything. You end up with just 
restrictions, regulations, costs, and burdens on honest Americans.
  I have offered legislation--I am having a hard time getting any 
cosponsors on the Democratic side, but I think the Federal crack 
cocaine laws tend to be too tough, and they tend to fall 
disproportionately on African Americans. I think we ought to fix it and 
do something about it. I have proposed and written legislation and 
offered it more than once to do just that.
  I am not here as one who believes locking people up and throwing away 
the key is the answer to fighting crime, but it is a big part of 
fighting crime that people receive substantial punishment if they 
represent a danger to the community or if they commit a serious crime.
  Look at the incarceration rates: From 1980 to 1994, the 10 States 
with the greatest increase in prison population averaged a decrease of 
13 percent in violent crime, while the 10 States with the smallest 
increase in prison population averaged a 55-percent increase in violent 
crime.
  They say lock everybody up. Everybody does not shoot someone. There 
is only a small number of people in this country who have the 
maliciousness, the violent nature, or the hostility or meanness to go 
around shooting somebody. The more of those you can identify, the more 
of those you lock up, you can reduce the violent crime rate. You can 
make our communities safer and protect innocent Americans from that 
kind of activity. It is just as plain as night and day.
  If you put violent criminals behind bars and keep them there, good 
things can happen. In 1991, 162,000 criminals who were placed on 
probation committed 44,000 violent crimes during their probation. A 
fourth of them committed a violent crime while they were out on 
probation. Twenty-one percent of the persons involved in the felonious 
killing of law enforcement officers during the last decade were on 
probation or parole at the time they murdered a police officer.
  Some say if you really like police officers, you will vote against 
this bill because somehow this bill has something to do with protecting 
police officers from being murdered. Police officers are not telling me 
if one of their brothers or sisters is killed by a criminal that they 
want to sue Smith & Wesson. They are saying they want the criminal 
convicted and prosecuted. They believe if more criminals were 
prosecuted aggressively and fewer were given parole and probation 
early, then more police officers would be alive and healthy today. This 
is what we need to do.
  I want to share this story on this general subject. It came to my 
attention recently, in June of this year. Leura Canary, a fine U.S. 
attorney in Montgomery, AL, the Middle District of Alabama, presides 
over 23 counties in the southwestern part of the State as a Federal law 
officer, and she works with others. She was presented a national award 
for most improved gun violence program.
  I saved this release and would like to share it with you because it 
is emblematic of what we can do to save lives, protect the innocent, 
and reduce crime in America.
  She calls their program Alabama ICE. It emphasizes cooperation among 
Federal, State, and local law agencies. They developed in the region an 
effective task force, a task force to combat gun crimes. The task force 
developed a training program and a case preparation technique plan. It 
produced significant results. Look at this. Federal gun prosecutions in 
the middle district of Alabama tripled in fiscal year 2003 over fiscal 
year 2002. Three times as many were prosecuted. And the number of gun 
crime matters referred for prosecutions increased 257 percent in that 
same period. Between 2000 and 2003, the number of gun prosecutions in 
the middle district has increased 513 percent.
  She obviously took Attorney General Ashcroft's injunctions and 
directions to heart, a fact mentioned by Attorney General Ashcroft in 
his keynote address.
  According to local officials, these efforts--local officials, not the 
U.S. attorney--have had a measurable effect on violent crime. In 
calendar year 2003, there was a 42-percent reduction in criminal 
homicides in the city of Montgomery over the previous year, 2002, a 42-
percent reduction in the number of people murdered in the city of 
Montgomery.
  Montgomery Police Chief John Wilson, whom I have known for quite a 
number of years, and who has been a professional in his career, who was 
an early partner in this effort, Alabama ICE task force, said:

       Alabama ICE is the only new program we implemented during 
     this time period which targets violent crime in our city. I 
     believe that ICE is a major factor in these reductions in the 
     number of violent offenses. Without this program, these 
     criminals would still be in our community committing crimes.

  And, I would add, murdering people.
  Local Alabama ICE task force members also expressed their reactions 
to the program and the award. Chief Anthony Everage of the city of 
Troy, a midsized or smaller city, said this:

       I think this is an excellent example of what can be 
     accomplished through a joint effort by the United States 
     Attorney's Office of the Middle District and law enforcement. 
     Ms. Canary presented this very effective program along with a 
     plan of action to our agency and the implementation has and 
     will continue to make Troy a safer place.

  ``When Alabama ICE was implemented in Dothan, it was as though 
someone threw a large rock into still waters. The ripple effect 
shuddered through the criminal culture almost overnight. The word is 
out, get caught committing a crime while holding a gun and you're done. 
Even Johnny Cochran can't get you off,'' said Dothan Police Chief John 
White.
  Actually, Johnny Cochran supported this effort and warned that people 
who commit crimes with guns suffer serious Federal time, because he 
knew innocent people's lives are at stake.
  District Attorney Randall Houston of the 19th Judicial Circuit of 
Autauga, Elmore, and Chilton Counties, stated:

       Working with Federal prosecutors has expanded our charging 
     options and our ability to lock up the most dangerous 
     criminals in our community. We received this award because of 
     the effectiveness of our partnership in combating crime.


[[Page S9233]]


  Sheriff Jay Jones of Lee County said:

       This award represents the positive result of criminal 
     justice agencies on Federal, State, and local levels working 
     in concert to confront and effectively reduce the incidents 
     of gun violence in our community.

  Is that not what it is all about, reducing gun violence?

       Actual, measurable reductions in violent gun crimes have 
     occurred in all of the fine programs implemented throughout 
     the United States, and of those the program in the Middle 
     District, administered under the direction of U.S. Attorney 
     Leura Canary, was chosen as one of the best. It puts an 
     exclamation point on the statement of hard work that so many 
     law enforcement agencies in central Alabama do each day to 
     provide for the safety of the public.

  Sheriff Jimmy Abbett of Tallapoosa County said:

       Alabama ICE has been very beneficial to our department in 
     the successful arrest and convictions of persons in our area. 
     The U.S. attorney has provided a willingness to work with 
     local agencies. . . . The program . . . has provided local 
     law enforcement agencies another tool to take the habitual 
     criminals off the street.

  That is what it is all about. Violent crime rates have reached the 
lowest level in 30 years, almost to the level of 1950. The crime rate 
went up steadily beginning in the 1950s into the early 1960s to the 
mid-1970s. In 15 years the murder rate doubled in this country. 
President Reagan came in and we saw about a 20-percent reduction. Then 
that flattened out during the crack cocaine years and then in the 1990s 
we began to see this go down.
  One of the reasons is the Project Exile program that began in 1997 
and is now spreading all over the country, which focuses on the 
criminal use of firearms. Whereas I am proud to review any legislation 
anybody wants to offer, I would note this, that I am willing to bet--I 
do not have the numbers on it, but I am willing to bet that perhaps 90 
percent of the cases prosecuted in Federal court under these Project 
Exile type programs, the main ones are prosecuting any criminal in 
America who carries a firearm or possesses a firearm after having been 
convicted of a felony. If one is a felon, they are no longer able to 
possess a firearm. If firearms are kept out of the hands of felons, we 
are going to have less murders.
  The next one is very close and very significant. It is carrying a 
firearm during the commission of a crime. It can be a crime of 
violence, a drug crime, a burglary, or a robbery. If someone is 
carrying a gun during criminal activity, they have a mandatory 5 years, 
60 months, without parole, if they are convicted, in addition to what 
time they get for the underlying crime. That information is getting out 
there. The word is out there. Fewer and fewer criminals are carrying 
guns because of that.
  Then there is carrying a sawed-off shotgun, possessing a firearm 
where the serial number has been erased or erasing a serial number. 
Those are the kinds of activities that form the bread and butter of the 
criminal prosecutions I mentioned today. That is what will break the 
back of crime. That is what can hold out hope that if we effectively 
and professionally maintain the pressure on the criminal gun element 
through these prosecutions, we can reduce crime, make our communities 
safer, and save innocent lives.

  I do not think suing gun manufacturers is the right approach. That is 
not the way we are going to deal with it. We have the right approach. 
It was proven by the U.S. attorney in Richmond. It is being replicated 
all over America today. The Attorney General is driving this as one of 
his highest priorities, and if we stay on it, we are going to continue 
to see the murder rate in this country go down. Who knows, the murder 
rate could actually reach the level of the 1950s. We are not far from 
that today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I will take a moment to talk about the bill.
  Mr. SESSIONS. Mr. President, would the Senator yield for a question?
  Mr. REED. I would be happy to yield for a question.
  Mr. SESSIONS. I hope the Senator is not too disturbed with me. I 
noticed in the New York Times today they had my picture in there and 
they described it as that of Senator Reed. It probably will cost him 
50,000 votes in his home State. But it was not my fault and if the 
Senator sues anybody, sue the New York Times.
  Mr. REED. Reclaiming my time, I say to my distinguished friend and 
dear friend from Alabama, I am not perturbed. I just fear for his 
safety, and I thank him.
  Mr. President, we have heard over the course of the last few days 
numerous homilies about personal responsibility. The irony, of course, 
is this legislation says everyone is responsible except for gun 
manufacturers, gun dealers, and gun trade associations.
  There has been a discussion about the law. If one breaks a law they 
should be punished, but such discussions fail to capture the fact that 
we have essentially two systems with our legal system. There is the 
system of laws, the statutes, the ordinances that are passed by 
legislative bodies such as this body, and then there is the civil law: 
the criminal law and the civil law.
  The Senator from Alabama went on at length about how we can enforce 
criminal laws more effectively; we can do good things with respect to 
criminal law enforcement. But I think we are ignoring the sense that 
there is also this civil law, where people can go to court if they have 
been injured and seek redress.
  What this legislation would do is prevent many Americans who have 
been injured from going to court and seeking redress, either some type 
of compensation or some type of equitable remedy.
  It is important that we recognize this bill will deny a voice to many 
people, modest people, who have been injured and who seek redress.
  I was trying to think of a somewhat mundane example about these 
different systems. Since so much of this legislation talks about, well, 
if a particular statute is violated, one will be liable, but there is 
this intersection of obligations both under the criminal law and 
statutes and under the general principles of civil law.
  The example I think of is there are some jurisdictions that make it a 
violation of the law to operate a cell phone in one's hand while they 
drive, and if one had an accident in that circumstance and someone is 
injured, the person could be prosecuted for violating the law, but they 
also could be sued because they have an obligation and duty to pay full 
attention as they drive. In other jurisdictions without this law, one 
could not be criminally charged but, of course, they could be sued.
  Here is what essentially this legislation does in lots of respects. 
It says we are disregarding those instances where one has a duty to 
someone under the civil law. We will let them proceed with their suit 
if there is a criminal violation or a statutory violation, a violation 
of regulations, but for the vast number of other responsibilities we 
owe to each other, that are defined for the civil law, one will not 
have the opportunity to go to court.
  Essentially, what we have said is we all have these obligations and 
responsibilities, except this now special, privileged class of gun 
manufacturers, gun dealers, and gun associations.
  There is the presumption that has been persistent throughout that the 
law of the United States in general does not recognize any type of 
obligation if there is a criminal intervention, if a criminal gets 
involved in proximity to the injury. As I mentioned before, the black 
letter law of this country that is established in the restatement of 
torts clearly says if there is a criminal intervention, one can still 
be held liable for negligence if they fail to perform their duty, even 
if in the chain of action of causation there is a criminal act. So this 
notion that we are charging these gun dealers and gun manufacturers 
with the crimes of another, a bad person or criminal, is without 
substance.
  What Senator Levin said so eloquently and others said so eloquently 
talking about his amendment, is this is about the responsibility of the 
manufacturer, the gun dealer, and the gun associations to fulfill their 
duties to the general public and to specific individuals who have been 
harmed: the duty to secure weapons, the duty to act reasonably, the 
duty to look beyond the superficial aspects of someone coming into a 
store.
  We have seen classic examples: The fellow who walks in with the 
girlfriend and picks out 12 weapons, gives her

[[Page S9234]]

cash, she pays for it. It is so suspicious that the operator of the gun 
store calls ATF and says, well, I got the money, they got the guns, but 
watch out for them. That was the circumstance that led to a chain of 
causation to the serious wounding of two New Jersey police officers. 
That gun dealer had an obligation to avoid straw purchases. He did not 
even follow the standards of the industry in terms of being careful of 
selling multiple guns to some person under those circumstances.
  So it is not about the crimes of others being attributed to gun 
dealers and gun manufacturers. It is not about social conditions that 
are being excused by these suits. It is about whether an individual had 
a duty to another person who was injured and failed to carry out that 
duty.
  One of the major reasons we are here, taking very radical action to 
change 200 years of legal history in the United States, taking the 
radical action of going into 50 States and saying, We don't care about 
your laws--the General Assembly of Rhode Island, the General Assembly 
of North Carolina, of Alabama--we don't care about your laws, we don't 
care that for 200 years, you specified the standards for negligence in 
your State, we are changing them for these special people. We don't 
care that your courts should have the right to take the claims of your 
citizens who have been harmed. We don't care about that. And we are 
doing it for a very narrow, defined group of individuals. This is a 
radical departure from the standards we have adopted and abided by for 
200 years.
  The pretext for all of this is that there is this huge crisis with 
respect to manufacturers that threatens their existence, that they are 
financially on the ropes, that these suits are numerous and literally 
driving them to bankruptcy.
  Where are the facts? The facts that we can establish from the public 
filings of certain companies suggest that there is no crisis. There is 
no crisis at all. This is a manufactured crisis. This is a pretext to 
do the bidding, I believe, of the gun lobby. If you look at the facts 
as reported, there is no financial crisis that is apparent.
  Yesterday, my colleague, the Senator from Idaho, read a letter from 
the president and chief executive officer of Smith & Wesson that talked 
about or tried to explain their filings with the Securities and 
Exchange Commission, their 10-Q filing, and concluded with a stirring 
passage about the necessity, the criticality of this legislation to 
Smith & Wesson. It gave the suggestion, of course, that my discussion 
of their financial reports was somehow inaccurate or incomplete. So I 
went back and I got their 10-Q report, which was filed on March 10, 
2005, for the period January 31 to March 10. It was filed, let me say, 
March 10, 2005.
  They go on to describe these suits, as generally is done. They 
conclude:

       We monitor the status of known claims and the product 
     liability accrual, which includes amounts for defense costs 
     for asserted and unasserted claims. While it is difficult to 
     forecast the outcome of these claims, we believe, after 
     consultation with litigation counsel, it is uncertain whether 
     the outcome of these claims will have a material adverse 
     effect on our financial position, results of operations, or 
     cash flows.

  They are not quite certain whether those cases will cripple them. 
They go on to say:

       We believe that we have provided adequate reserves for 
     defense costs.

  They go on and say further:

       We do not anticipate material adverse judgments and intend 
     to vigorously defend ourselves.

  In a sworn statement to the Securities and Exchange Commission, they 
say: We don't know if this is going to be critical to our financial 
status. In fact, we don't anticipate material adverse judgments. We 
don't think any of these cases will be resolved in a way that will 
negatively affect our position, and we will vigorously defend 
ourselves.
  They went on to say, and we said this before on the Senate floor:

       In the nine months ended January 31, 2005, we incurred 
     $4,535 in defense costs, net of amounts receivable from 
     insurance carriers, relative to product liability and 
     municipal litigation.

  That is $4,500, basically, out-of-pocket costs they have received 
from reimbursements from insurance companies. That is the nature of 
insurance: You pay the premium; if something happens, you get 
reimbursed.

       During this period, we paid no settlement fees relative to 
     product liability cases. As a result of our regular review of 
     our product liability claims----

looking at these claims we talked about here as strangling their 
ability to be competitive and to survive----

     we were able to reduce our reserves by $286,022 for the nine 
     months ended January 31, 2005.

  This is such a perilous threat to a company like Smith & Wesson that 
they are actually reducing the reserves they have on hand to handle 
these claims.
  Again, this is not a crisis. Again, their own data suggest--this from 
their Web site. This is 2001. These are the industry municipal cases 
pending or on appeal: 32 and 10 in 2001; in 2002, 26 and 8; 2003, 20 
and 5; 2004, 13 and 4; 2005, 4 industry municipal cases pending and 2 
product liability cases pending against Smith & Wesson.
  The curve is going the wrong way for a crisis. It is going down: 
four, and two pending cases. It suggests that the courts are doing 
their job, that the present system we have in place is actually 
handling these cases pretty well. There is no flood of cases coming 
over the transom. In fact, this is exactly consistent with their 
reduction of the reserves for liability because it appears that these 
cases are dwindling, not increasing. It appears that the system is 
working pretty well right now. Yet we are here today debating 
legislation that will deny the rights of individual citizens to go to 
court, rights they have enjoyed for 200 years in this country, rights 
that stem not from the actions of criminal third parties but from the 
failure of the individual defendants to take appropriate action in 
their duty with respect to the general public and specific individuals.
  It is the same with respect to other companies for which we have 
public records. Many of these companies are privately held. Beretta USA 
is domiciled in the United States, but it is a subsidiary of an Italian 
corporation which is privately held, and they are not publicly 
reporting. But all of this suggests again--not only with Smith & Wesson 
but with Sturm, Ruger--that there is no material adverse impact 
reflected by these individuals in their reporting under the pain of 
penalty for perjury under the Securities and Exchange Commission.

  Also, there is a general record of claims and legal cases which goes 
to suggest that these suits are not an epidemic. As we have indicated 
before, from 1993 to 2003, 57 suits were filed against gun industry 
defendants out of an estimated 10 million tort suits. I am not good at 
math, but that is way below 1 percent. This is not an epidemic. This is 
not a crisis. Certainly this is not a crisis that is going to threaten 
our national security.
  We have heard claims that the gun industry is being forced to spend 
hundreds of millions of dollars. The alleged litigation costs have 
risen in $25 million increments. In fact, I think they have risen since 
we started this debate, from what I have heard, without any kind of 
factual data to support them. They are just claims that they are 
spending all of this money. In fact, if you look at these SEC reports, 
it hardly adds up to $200 million. Indeed, it seems, based on Smith & 
Wesson, that reflecting the declining cases they are actually reducing 
their reserves and potentially, hopefully, reducing what they have to 
pay out of pocket. But these estimates grow and grow and grow. In 2004, 
it was $150 million in July. In November 2004, other estimates, $175 
million. Now it is up to $200 million. I think I heard in this debate 
$250 million. No substantiation, no documents, no data.
  This is not a crisis. Yet we have displaced the Defense bill to take 
up this legislation. We have displaced other legislation that could be 
extremely valuable in order to take up this legislation. Because there 
is no crisis----
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. REED. I am happy to yield.
  Mr. DURBIN. First, I thank the Senator from Rhode Island for his 
leadership on this issue. The Senator from Rhode Island is a member of 
the Armed Services Committee. I think it raises some questions and 
bears repeating that we left the Department of Defense authorization 
bill, which was on the floor of the Senate, the bill for our Department 
of Defense that covers our

[[Page S9235]]

soldiers and their families, buys the necessary equipment so they can 
execute the war successfully and come home, with amendments pending 
relative to payments to widows and orphans for soldiers who died in the 
line of duty, with amendments pending to provide additional assistance 
to totally disabled veterans, with an amendment pending that would have 
provided additional compensation to members of the Guard and Reserve 
who happen to work for the Federal Government and are activated.
  I would like to ask the Senator from Rhode Island, can the Senator 
from Rhode Island tell me, before we moved to this special interest 
legislation to protect the gun industry manufacturers and dealers from 
personal responsibility for their wrongdoing, would the Senator from 
Rhode Island describe for those following the debate what was on the 
floor of the Senate when the Republican leadership decided to move to 
this bill?
  Mr. REED. I thank the Senator from Illinois for his question. There 
were a series of extraordinarily important questions with respect to 
the quality of life for our soldiers and their families: childcare 
amendments, amendments with respect to veterans health care, amendments 
that applied not only to active-duty personnel but their dependents. We 
had passed legislation already, an amendment that would increase the 
number of up-armored HMMWVs we are providing to our soldiers. That 
stands in abeyance until we finish the legislation.
  There were important inducements for additional service and 
enlistment that are necessary to meet the growing and real crisis in 
recruiting military personnel. If you want to talk about a crisis, it 
is a crisis, the fact that our Army, despite efforts, has fallen short 
of the recruiting goal at a time when we need every person to fill out 
the demand for operations in Iraq and Afghanistan and around the world. 
It is extraordinarily serious.
  I don't know if I can find it, but I saw an editorial cartoon in a 
magazine, a newspaper, which had a picture of a humvee and three 
soldiers. The caption, if I recall it, is:

       Why don't we just take a 4-week recess during this 
     difficult time and then return to this operation afterwards?

  Essentially, I think it captured the dilemma the soldiers are feeling 
right now. What are we doing?
  As the Senator previously indicated, in the Army Times, they wrote of 
this:

       Senate delays action on the defense bill.

  I ask unanimous consent to have two articles printed in the Record, 
one from the Hill and the other from the Army Times, which talk about 
this issue of leaving the Defense bill and also the impact on 
procurement of weapons because of this legislation.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From The Hill, July 28, 2005]

                  Frist: Lawsuits Threaten Gun Supply

                           (By Roxana Tiron)

       Senate Majority Leader Bill Frist (R-Tenn.) interrupted 
     debate on the 2006 defense authorization bill to consider 
     legislation to block lawsuits against gun manufacturers, 
     saying that ``frivolous'' litigation could leave the Defense 
     Department without a U.S. source for sidearms.
       Despite Frist's alarming claims, the military is not 
     currently facing any shortage of small arms, according to 
     Pentagon officials.
       American gun manufacturers supply the military with 
     hundreds of millions of dollars worth of small arms, which 
     includes a broad variety of firearms from pistols to machine 
     guns. The weapons are worth even more when ammunition, 
     modifications and special features such as optical sights are 
     included.
       The U.S. firearms industry has been facing repeated 
     lawsuits, an attempt to hold manufacturers liable when guns 
     that were sold lawfully are subsequently misused by 
     criminals, explained Lawrence Keane, senior vice president 
     and general counsel for the National Shooting and Sports 
     Association, a nonprofit organization representing the 
     firearms industry.
       The Senate is considering a new version of a gun-liability 
     measure that was effectively killed by its own supporters 
     last year. Sponsored by Sen. Larry Craig (R-Idaho), the 
     measure would prohibit civil-liability actions against 
     manufacturers, dealers and importers of firearms and 
     ammunition in any state or federal court.
       In April, the District of Columbia Court of Appeals ruled 
     that any victim of a shooting in the District could sue the 
     industry, which Keane said would make gun manufacturers 
     ``absolutely and automatically'' liable for a criminal 
     shooting in D.C. Beretta USA, the manufacturer of the M9 
     pistol, the standard firearm for the armed forces, expressed 
     concern that a single jury ruling in the District could 
     bankrupt the company.
       ``Every criminal shooting in the district gives rise to a 
     suit against the industry, and these are the types that need 
     to be stopped,'' Keane said.
       ``Without this legislation it is probable the American 
     manufacturers of legal firearms will be faced with a real 
     prospect of going out of business, ending a critical source 
     of supply for our armed forces, our police and our 
     citizens,'' Frist said.
       Frist's decision to take up the gun-liability measure comes 
     amid an Army review of more than a half-dozen requests for 
     proposals for new small arms. In fact, the Army has extended 
     the request for six months to allow more companies to compete 
     and included the Marine Corps's requests, according to an 
     Army spokesperson.
       While the Defense Department refused to comment on 
     ``speculative legislation,'' an Army spokesperson said the 
     Army currently is not experiencing any problems with the 
     supply of its sidearms. The Army is the purchasing agent for 
     most services' sidearms; some exceptions exist for special-
     operations forces.
       Army leaders are revamping their small-arms inventories to 
     be better suited to the kind of guerrilla wars being fought 
     in Iraq. The spokesperson said the Army has not had problems 
     buying these weapons, although the spokesperson acknowledged 
     that because the Defense Department is the largest gun 
     purchaser, it could serve as a ``relevant hypothesis'' for 
     Frist's arguments.
       ``These frivolous suits threaten a domestic industry that 
     is critical to our national defense, jeopardize hundreds of 
     thousands of jobs,'' Frist said. ``Many support this 
     legislation, and I am hopeful that with the cooperation of 
     members we can complete all action on this legislation before 
     the recess.''
       Frist used the gun-liability legislation in part as a 
     strategy to divert attention from amendments related to 
     treatment of detainees and the Pentagon's base closures and 
     realignments. The Bush administration opposes those 
     amendments.
       Keane argued that the liability bill still allows 
     manufacturers to be sued if they violate any laws governing 
     gun sales.
       ``There is nothing in the legislation that prevents the 
     Alcohol, Tobacco and Firearms Bureau from enforcing the gun-
     control act because a dealer has violated regulations,'' he 
     said.
       According to Keane, the gun industry has spent at least 
     $225 million on lawsuits in the past 10 years and small 
     companies such as Charco 2000 have filed for bankruptcy 
     because of lawsuit expenses. Both Beretta and Sigarms, the 
     two top suppliers to the military have been sued numerous 
     times.
       ``If . . . [a company] like Beretta, which has been sued, 
     is driven out of business, it will not be able to fulfill 
     [its] contractual obligation,'' to the military, Keane said.
       He argued that these issues should pose immediate concern 
     to the Defense Department. The firearms (buying) system 
     hasn't ``collapsed,'' said the spokesperson.
       Beretta recently received a contract to supply 18,744 M9 
     semiautomatic pistols to the U.S. Air Force with an option to 
     purchase an additional 5,190 pistols.
       The pistol is produced at the Beretta USA headquarters in 
     Accokeek, MD., where it has been made for 20 years. The Air 
     Force plans to buy 34,374 M9s between 2004 and 2007 at a 
     price of $39 million, according to Air Force budget 
     projections. Meanwhile, the Army is planning to buy $8 
     million worth of modifications to the M9 and M11, which is 
     produced by Sigarms, between 2006 and 2007.
       The Navy is planning to buy 1,069 M11s through 2011 at a 
     total cost of $722,000 and to spend $5.6 million on 
     modifications to the M9 pistols, which are supposed to be 
     completed this year.
       According to Hoovers, a business-information service, 
     Beretta's revenue is estimated at $72.7 million annually.
       Another major gun manufacturer, Smith & Wesson, which 
     provides firearms to law-enforcement officers, told the 
     Securities and Exchange Commission that it is expecting its 
     sales to reach $124 million this year, 5 percent higher than 
     last year.
                                  ____


                  [From the Army Times, July 26, 2005]

                  Senate Delays Action on Defense Bill

                             (By Rick Maze)

       Senate Republican leaders decided Tuesday that a gun 
     manufacturers' liability bill is more important than next 
     year's $441.6 billion defense authorization bill.
       With Democrats expressing amazement that there could be any 
     higher legislative priority in a time of war than the annual 
     defense bill that includes money for pay and benefits, 
     operations and maintenance, and weapons purchases and 
     research, Sen. Bill Frist of Tennessee, the Senate Republican 
     leader, decided Tuesday that a bill protecting gun 
     manufacturers from lawsuits over the illegal use of firearms 
     was a higher priority.
       The decision came after Republican leaders failed to muster 
     the 60 votes needed to prevent amendments not strictly 
     related to the defense budget from being offered to the 
     defense bill.
       In a count of 50-48, seven Republicans joined Democrats in 
     voting not to restrict debate, a move that Democratic leaders 
     said would have prevented consideration of amendments to help 
     veterans and survivors

[[Page S9236]]

     of deceased service members, along with other issues.
       With Congress planning to leave town Friday for one-month 
     break, debate on S. 397, Protection of Lawful Commerce in 
     Arms Act, is expected to last two or three days, and then 
     Senate leaders plan to take up an energy bill, an estate tax 
     reform bill and an Interior Department funding bill that has 
     a $1.5 billion bailout attached for veterans' health care 
     programs, leaving no time until September to get back to the 
     defense bill.
       The House approved its version of the defense bill in May 
     and has been waiting for the Senate to catch up to begin 
     negotiations with the Bush administration on a final version.
       Delay in the Senate is partly a result of senators spending 
     three weeks this spring debating federal judicial nominations 
     before reaching a compromise on President Bush's nominees.
       It all points toward a difficult autumn. When the Senate 
     returns in September from its month long summer recess, it 
     will need to consider recommendations of the Defense Base 
     Closure and Realignment Commission, due to finish its work by 
     Sept. 8, and begin deliberations on the John Roberts to the 
     Supreme Court vacancy left by retiring Justice Sandra Day 
     O'Connor.

  Mr. DURBIN. I will ask a question through the Chair. The Senator from 
Rhode Island, who has been speaking about the lack of emergency, the 
lack of crisis in the gun industry, and the fact that this is certainly 
not emergency legislation--I don't believe it is even wise legislation 
for us to consider--the Senator from Rhode Island is a graduate of West 
Point and a former officer in the U.S. Army. I would like to ask the 
Senator, who serves on the Armed Services Committee, as he has read 
these Army Times articles which raise questions about why the U.S. 
Senate would give up on the Department of Defense authorization bill 
for our troops, leave it behind and move to this bill, the special 
interest bill to protect the gun industry from their liability for 
their own wrongdoing, I would like to ask the Senator, what kind of 
impact can this have on the morale of the men and women who read about 
the Senate leaving this important legislation?
  Mr. REED. I think at a minimum it puzzles them why we would shift 
from their concerns, which are so central to our national security and 
so central to the families of America, to move to a bill that is so 
narrowly focused on a special interest group and does not help them one 
bit in terms of anything we might do on this bill.
  Perhaps it is summed up. I have located the cartoon. It is as I 
described before--a group of soldiers in a humvee, and the caption is:

       I move we adjourn for 5 weeks and take up this contentious 
     issue after the summer recess.

  Frankly, no one in our military has the option of adjourning for 5 
weeks to take up contentious issues after that time.
  Mr. DURBIN. If the Senator from Rhode Island will further yield for a 
question to the Chair, I wish to make sure those following the debate 
understand what this bill does. I ask the Senator from Rhode Island, 
who has followed this issue more closely than any other Senator on our 
side of the aisle, is my understanding correct that if this is enacted 
into law, as a result of this legislation, if you are a gun dealer and 
you sell a gun to someone you knew or should have known was in a drug 
gang, a criminal, a drug trafficker, someone who is likely to misuse 
that gun, use it for criminal purposes, that this bill says that the 
victims of the violence from that purchaser cannot hold the gun dealer 
responsible for his negligence in selling this gun to someone they knew 
or should have known was going to misuse it and create victims, tragic 
victims, in their community?
  Mr. REED. The legislation generally bars all suits involving 
negligence and restricts the exemption to some categories of specific 
violations of Federal law which arguably, in your hypothetical, it 
would not reach. The only exception, to be fair to the legislation, 
that might allow someone to go to court under the concept of negligent 
entrustment, which as drafted in the legislation would say you have to 
suspect, know that the person would use the weapon illegally, and that 
person has to use the weapon. But most commonly what happens is there 
is a straw purchaser, so the negligent entrustment argument doesn't 
work because that weapon is not being used by that person; it is given 
to a third party.
  But I think the Senator's comment is exactly right. There are so many 
cases where this legislation has been carefully crafted to prevent 
people going to court, and the best examples are the ones of which we 
are already aware. The sniper case in Washington, DC, where a young 
teenager walked into a shop, shoplifted apparently a 3-foot assault 
weapon which was used to murder too many people here in the District of 
Columbia. That suit would be prevented by this legislation; in 
addition, the case of the straw purchaser and the police officer in New 
Jersey, prevented by this legislation. We have a case pending now where 
an individual, a young man, was killed by a weapon that was taken out 
of a factory, and the gun manufacturer would be exempt, immune from 
liability, even though he had no background checks on his workers who 
were criminals and drug addicts, he had no security devices and, in 
fact, missed any rudimentary standard of care that most reasonable 
people would say is associated with running a gun factory.
  Mr. DURBIN. If I could ask the Senator from Rhode Island another 
question, through the Chair. If someone owned a daycare facility and 
hired, without any background check and without adequate investigation, 
an employee with a long criminal record of being a sexual predator, 
someone hired this person to work in a daycare center and that employee 
then harmed one of the children at the daycare center, I think the 
Senator from Rhode Island and I would agree that many would argue that 
daycare center was negligent, it had a responsibility it did not meet, 
and that this daycare center should be held responsible, even in court, 
for the harm that came to the child.
  The example that the Senator from Rhode Island used was a gun 
manufacturer, who hired employees with long criminal records, including 
felonies, that had guns stolen out of the manufacturing plant by some 
of these employees with criminal records, and the guns were then used 
on the street to harm innocent people.
  In the second example we have used--not the daycare center but the 
gun manufacturer--this bill would say you can sue the daycare center 
because they didn't do a background check on the employee who molested 
the children, but you can't hold the gun manufacturer liable for hiring 
employees with a criminal record, putting guns on the street and 
killing innocent children.
  Mr. REED. That is exactly right, in my reading of the legislation. 
There are certain jurisdictions that have specific laws with respect to 
background checks on daycare centers. The gun industry is virtually 
unregulated, which is a very important point here. There is very little 
regulation deliberately on the manufactured weapons, the standards. As 
you point out so often with respect to product safety, toy guns are 
regulated by the Consumer Product Safety Commission, real guns are 
unregulated in terms of their safety. So there is no legal--very little 
legal statutory requirement. So it depends upon claims of negligence to 
get at this harm and to redress the harm caused, and this bill 
essentially wipes out that civil liability under our court system.
  Mr. DURBIN. I ask the Senator from Rhode Island because I think it is 
a critical point, how many other businesses in America enjoy this 
exemption from liability, how many other businesses, producers of goods 
or services are held harmless for their own negligence and wrongdoing 
in courts of law across America? How many other businesses would have 
this special interest legislation that is being considered and may be 
passed by this Chamber?
  Mr. REED. Virtually no other. Comments were made on the floor with 
respect to legislation passed back in 1994 with respect to general 
aviation. I think it is important at this juncture to clarify that. 
There was very limited legislation that applied to general aviation 
aircraft, 18 years or older, in terms of liability because of the 
concern about the manufacturing base. But there is a distinct 
difference between this legislation and the General Aviation 
Revitalization Act of 1994, and it goes to the point we just discussed. 
There is no more highly regulated industry than the aviation industry. 
Every time an engine is worked

[[Page S9237]]

on, there has to be a log entry made which is subject to the 
jurisdiction of the Federal Aviation Administration. It is the most 
detailed legislative scheme we have in place perhaps because the safety 
of the passengers, all of us, depends upon it. So giving a limited 
grant of immunity to an industry that is so highly regulated is quite 
different than telling an unregulated industry you have no liability. 
That is essentially what this bill does, with very minor exceptions; 
clearly, I think exceptions which were artfully crafted to avoid the 
cases that exist today.
  Mr. DURBIN. I would like to ask, through the Chair, if the Senator 
from Rhode Island would further yield for a question. We have talked 
about the gun manufacturer who did not do a background check on his 
employees and the employees stole guns without serial numbers on them--
the guns went onto the street and were used to kill innocent people--
that that gun manufacturer would escape liability under this bill that 
is before us. I would like to ask the Senator from Rhode Island about 
the example where someone who is a gun dealer, knows that under the law 
you cannot sell guns to felons, people convicted of a felony, sees 
someone who comes in with another person, we call them straw 
purchasers, someone else who is going to buy the guns, a girlfriend, 
some other person. We had a case I believe the Senator referred to, a 
10-year-old boy in Philadelphia on his way to school gets right to the 
gates to go into the schoolyard, a gang member comes up and shoots him 
in the face. He survived, was conscious for a few hours and then lapsed 
into a coma and died. It turns out that the gun was traced to a store 
where it was sold to one of these straw purchasers--the other 
purchaser, the real purchaser who wasn't eligible to buy it, standing 
next to them. So it was pretty clear what was going on. The store clerk 
charges extra because there is a straw purchaser involved, 
acknowledging they know that this gun is being bought by one person to 
be given to another.

  So what the Senator from Rhode Island is telling us is that this bill 
says the family of that 10-year-old boy shot in the face, who died by 
that gun, cannot even go to court to hold responsible the gun dealer 
who knowingly sold this gun to a straw purchaser to avoid the law.
  Is that my understanding of this as it is written?
  Mr. REED. I think the Senator is right. The only exception that could 
be argued would, I believe, be the exception with respect to negligent 
entrustment. As I pointed out, that has been defined to mean that the 
individual who receives the weapon--you have to have also the suspicion 
that that person is going to use the firearm. In the classic case of a 
straw purchaser, they are the conduit to someone else----
  Mr. DURBIN. Middleman.
  Mr. REED. Middleman. So that the argument made by lawyers would say 
negligent entrustment, saying they gave it to inflict harm. Therefore, 
this very narrowly defined exception would not apply. Generally, the 
case I believe would be thrown out of court.
  Mr. DURBIN. I would ask the Senator from Rhode Island, when it comes 
to protecting gun dealers from civil liability, from being held 
responsible in court for their wrongdoing, I have read repeatedly that 
when you consider all of the licensed gun dealers across America, it is 
a very small percentage that repeatedly sells guns that, when traced, 
are used in the commission of crimes. It turns out, in my State of 
Illinois and in many other States, that the gun dealers who are the 
real wrongdoers, the ones who are abusing the system, are not the gun 
dealers selling in downstate Illinois, where I live, to the hunters and 
sportsmen and people who go to target ranges or want a gun for self-
defense, the real perpetrators of crime or wrongdoing who are protected 
by this turn out to be a handful of dealers in my State who again and 
again and again sell guns that end up involved in criminal activity.
  So I would ask the Senator from Rhode Island, who are we trying to 
protect here when it comes gun dealers?
  Mr. REED. The Senator asks an important question. According to 
Federal data from the year 2000, 1.2 percent of dealers accounted for 
57 percent of all guns recovered in criminal investigations--1.2 
percent of dealers, 57 percent of the guns recovered from criminal 
investigation. In fact, the national crime tracing data from 1989 
through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco and 
Firearms and Explosives has a virtual scorecard on these egregious 
offerings.
  Badger Outdoors, Inc., in West Milwaukee, WI, the dealer sold more 
than 554 guns traced to crimes, 475 of these guns had a ``short time to 
crime,'' as defined by ATF; that is, almost immediately they were in 
the hands of someone and had some type of criminal activity.
  I could go on.
  Well, for the benefit of the Senator, Realco Guns in Forestville, MD; 
Southern Police Equipment in Richmond, VA; Atlanta Gun and Tackle in 
Bedford Heights, OH; Colosimo's Inc, in Philadelphia, PA; Don's Guns & 
Galleries in Indianapolis, IN.
  Mr. DURBIN. These are the gun dealers.
  Mr. REED. Elmwood Park, IL; Breit & Johnson Sporting Goods in Elmwood 
Park, IL.
  Mr. DURBIN. These are the gun dealers that repeatedly sell guns that 
are traced to crimes. I ask the Senator from Rhode Island this 
question. The argument used for this gun legislation is, how can you 
hold a gun dealer responsible? For goodness sakes. How will they know 
what is going to happen to this gun? They sell the gun to a purchaser, 
the gun leaves the shop. Why in the world would you hold the gun dealer 
responsible? In the cases we have cited, in the examples which the 
Senator has used, you have gun dealers, 1.2 percent, who are 
responsible for more than half the guns traced to crimes. In these 
dealers you have repeated sales, and over and over again, hundreds of 
times, to those who will use them in crime. It obviously raises a 
question which the supporters of this legislation can't answer, and 
that is why you are trying to protect these miserable bums. Why are you 
trying to say they can't be held responsible for the devastation and 
killing and violence that goes on, on our streets when they are sitting 
there churning out firearms that are used day after day in the 
commission of a crime.
  I ask the Senator from Rhode Island, why do we not create an 
exception in this law for those who are repeat offenders as gun dealers 
who continue to sell these guns used in crime and we know it and we 
have the facts to prove it.
  Why in the world should we protect them in this legislation?
  Mr. REED. The Senator's point is extremely well taken. I think there 
should be at least that exception. I would argue, frankly, that the 
bill could be further modified to essentially allow individuals who 
have been harmed--move away from the issue of municipal suits but that 
is exactly the political implication--to let those suits survive. In 
fact, as Senator Levin urged, increase the standard from negligence to 
gross negligence, so further undercutting the argument about frivolous 
junk lawsuits.
  That would be a broader remedy, but your proposal is very wise.
  Let me give you an example of that store in Elmwood Park, IL, which I 
presume is close to Chicago.
  Mr. DURBIN. Yes.
  Mr. REED. This dealer has sold more than 347 guns traced to crime; 
271 of those guns had a short time to crime as defined by ATF--again 
short transit from the time it was sold to the crime scene. The guns 
were involved in at least 27 homicides, 46 assaults, 23 robberies, and 
271 additional gun crimes. The dealer also sold at least 5,429 handguns 
in multiple sales. That is another possible important remedy, the issue 
of multiple sales.
  Anthony Garner was arrested for gunrunning after he bought 16 
handguns from Breit & Johnson that were then sold to Chicago gang 
members. At least one of those guns was used in a gang-related killing. 
Andrew Young, age 19, was killed by Mario Ramos, a gang member with a 
gun from Breit & Johnson.
  The list goes on and on. We have these statistics. These are 
collected by the ATF. We know what's going on.
  Mr. DURBIN. I would ask the Senator from Rhode Island, I am a member 
of the Senate Judiciary Committee, and we are considering two different 
bills to deal with criminal gang activity across America, which is a 
serious problem.

[[Page S9238]]

  We are coming down with a variety of different ways to deal with 
these criminal gangs, to investigate them, to break them up, to arrest 
them, to make certain they face serious sentences for intimidation of 
witnesses, for recruiting young people into their gangs.
  I ask the Senator from Rhode Island, how can a Member stand in the 
Senate and say they are dedicated to stopping criminal gang activity in 
America and vote for this bill which allows gun dealers who have clear 
histories of selling repeatedly to gang members firearms that are being 
used to kill innocent people? How can a Member say they are against 
criminal gangs but are in favor of the gun dealers who are providing 
them with their firearms?
  Mr. REED. The Senator raises an excellent point. I phrase it slightly 
differently, but I reach the same conclusion.
  If gun dealers--who now have the threat of a civil suit if there has 
been negligence--are so cavalier in their attitude about guns, selling 
them to criminals, to straw purchasers, what happens when they are 
fully immunized or virtually immunized from any type of liability? What 
happens when they know that no family is going to come in and say, My 
son or daughter died because of your negligence, and we are going to 
see if we can take you to court and get something back--we will never 
get the child back--but something back.
  What about the surviving spouse or children who need something to 
maintain the quality of their life because they have lost their 
breadwinner?
  There is the case of Conrad Johnson, killed by one of the DC snipers. 
Those cases would be barred by this legislation.
  It is not that the individuals, families, and the survivors are 
denied their day in court, but any incentive to be responsible, to be 
scrupulous, to look harder to determine whether that person is buying 
the weapon at the direction of another, as a straw purchaser, is 
virtually eliminated. The consequences are going to be much worse. 
These dealers will be more flagrant, more blatant, less restrained. It 
is hard to see how they could be more blatant than they are today.
  Mr. DURBIN. I ask a final question. There has been a lot of 
discussion in the Senate about the fact there is no exception for gun 
dealers who sell their guns to people who turn out to be on the FBI's 
Most Wanted list or those who may be involved in terrorism.
  As the Senator from Rhode Island is undoubtedly aware, immediately 
after September 11, we raided one of the al-Qaida headquarters in 
Afghanistan and discovered one of their training manuals in which they 
gave advice to terrorists coming to the United States about buying 
their firearms in the United States because it was easy to buy a gun in 
this country.
  I ask the Senator from Rhode Island, when it comes to the exceptions 
in this bill, is there any exception such as the one suggested by 
Senator Kennedy that would put gun dealers on notice not to sell guns 
to people who are on the FBI's Most Wanted list so that we would say, 
you cannot get off the hook and be held, that you are not liable, not 
responsible for wrongdoing with a weapon if you did not take the time 
to check the FBI's Most Wanted list when you made that sale.
  Mr. REED. The Senator is again accurate. Unless Senator Kennedy's 
amendment is allowed to be voted upon, there is no prohibition against 
looking at the person's picture on the FBI's Most Wanted list, looking 
at the person and saying: Have a nice day. Take the gun.
  Again, one could argue that if that person actually uses the weapon, 
it might be negligence, but if he or she is a straw purchaser or buying 
lots of weapons to pass out, they would escape liability.
  Mr. DURBIN. I might just say, in closing, to the Senator from Rhode 
Island, when we traced criminal guns used in Illinois to kill people 
and commit serious crimes and tried to figure out where they were 
coming from, the largest supplier of guns to the State of Illinois of 
was Mississippi. In Mississippi, the enforcement of local gun laws is 
so relaxed and the enforcement of Federal laws is so relaxed that 
people could literally buy a van full of cheap ``Saturday night 
specials,'' get on the interstate highways and head north to Chicago, 
Springfield, and St. Louis, selling those guns on the street.
  I ask the Senator from Rhode Island, is there anything in this bill 
which will make it more difficult for those gun traffickers to buy 
these guns, turn them loose on the streets to kill innocent people in 
my State or any State in this country?
  Mr. REED. I don't see that. In fact, I don't see that as the purpose 
of this legislation. This is not about preventing criminals from 
getting weapons. It is preventing victims of gun violence from getting 
their day in court.
  Mr. DURBIN. I thank the Senator from Rhode Island.
  Mr. REED. I thank the Senator for his questions.
  The line of questioning that the Senator from Illinois has opened 
raises the issue: What are the exceptions? How can someone get to court 
if they have been harmed?
  Since we have had a robust discussion, and I see the Senator from 
Ohio in the Senate, I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, when this bill was before the Senate in 
the last Congress, I came to the Senate to oppose it. I opposed it 
because it denied certain gun crime victims, certain individuals who 
were victims of crimes committed with guns, their day in court. It 
singled out a particular group of weapon victims that it treated 
differently than we treat any other victims in the whole country. It 
set them apart.
  Unfortunately, the bill before the Senate is no better than the one 
we had last year. In fact, it is worse. Not only does it grant immunity 
to the gun industry, the bill also prevents Federal, State, and local 
government agencies from shutting down gun dealers who violate the law. 
Local and State governments are responsible for ensuring that 
restaurants are clean, that doctors are properly licensed, stores do 
not sell alcohol and cigarettes to our children. Why can't they also 
ensure that gun dealers and manufacturers operate responsibly? Why do 
we want to take that right away from them? Yet the current language of 
the bill before the Senate would do that.
  I have great respect for the many firearms dealers and manufacturers 
around this country who are legitimate, honest and hard working. The 
vast majority of dealers have no tolerance for buyers who circumvent 
gun laws. These dealers are also responsible, ensuring that they have 
adequate inventory control systems in place so that guns do not get 
lost or become missing.
  This bill would not help them. The responsible dealers don't need 
this bill. Cases filed against responsible dealers and manufacturers 
who have done nothing wrong can already be tossed out if they have no 
merit, as any frivolous lawsuit will be tossed out in a court of law if 
they are filed against any manufacturer of any product or against any 
wholesaler or retailer of any product.
  Who, then, will benefit by the passage of this bill? The people who 
will benefit are the irresponsible dealers and the irresponsible 
manufacturers.
  Let me describe some cases. Everyone remembers all too well the 
tragedies of the DC sniper cases. Some of the victims of the DC snipers 
sued Bull's Eye Shooter Supply, the gun dealer that negligently allowed 
a Bushmaster rifle to reach the hands of John Allen Mohammed and Lee 
Boyd Malvo. That suit was successful. In the settlement, the negligent 
dealer--we could have assumed he would have been found negligent in a 
court of law--agreed to pay the victim and their families $2.5 million.
  If this bill had been in effect a few years ago, these victims would 
have had no recourse in court.
  Or perhaps we remember Danny Guzman, from Worcester, MA. On December 
24, 1999, Danny Guzman was shot and killed by a gun that was taken from 
a factory run by Kahr Arms. Unfortunately, Kahr Arms hired Mark Cronin, 
an individual with a history of crack cocaine addiction and theft. 
Cronin was given unfettered access to the untraceable, unstamped guns 
in the factory. He bragged, in fact, that it was so easy to remove guns 
that he ``does it all the time and he could just walk out with them.''
  Cronin removed one of these guns from the factory. That gun ended up 
on

[[Page S9239]]

the streets, and tragically it was used to kill Danny Guzman. Those are 
the essential facts.
  Danny Guzman's estate, on behalf of his widow and two young 
daughters, sued Kahr Arms, alleging that it operated its plant in a 
grossly negligent manner, and in the spring of 2003, a State judge 
allowed that case to proceed. If this bill passes, however, the widow 
and children of Danny Guzman would be out of court.
  As we can see, this bill cuts to the core of civil liability law and 
guts it. As my colleagues know, now, under current law throughout this 
country, the victim needs to prove the defendant acted in an 
unreasonable manner--basic negligence law, the law those who are 
lawyers learn about in the first and second year of law school. It is 
the law of negligence that prevails in courts of law in every type of 
civil case. It is not unusual. It is what it is.
  Under negligence law, if the defendant fails to meet his or her duty 
to act in a responsible fashion, they are liable for negligence as long 
as that failure leads to harm to the victim. That is what is required. 
It is negligence. It is as simple as that. That is the standard. It is 
a standard we have developed over 200 years in this country, a standard 
we inherited from the British system. So we have hundreds and hundreds 
of years of experience in how to apply the rules of law, the common law 
negligence.
  This bill says that those rules will no longer apply for one set of 
victims. These rules that we have taken hundreds of years to develop 
will no longer apply to one set of victims and to one set of 
defendants.
  When we study law, one of the first things we learn is the difference 
between civil and criminal law. Someone who did not commit a crime can 
still be held liable in civil law to someone else and have to pay 
monetary damages. That is a basic concept.
  This bill, however, changes that fundamental idea of civil law 
because under this bill a victim cannot sue a gun dealer for damages 
resulting from illegal actions of a third party without also showing 
that a dealer is guilty of a violation of the law, even--even--when the 
dealer has been negligent. Again, that is a fundamental change in our 
law with one group of civil defendants.
  If this bill were to become law, a plaintiff would not only have to 
demonstrate that a gun dealer acted negligently, but also that the gun 
dealer broke the law--broke the criminal law. In other words, the 
plaintiff would--with one lone exception that has already been talked 
about on the floor a few moments ago--have to prove the gun dealer 
violated a statute or is guilty of a crime.
  We do not require this in any other place in our law. Why do we want 
to do it in this case? If those who come to the floor in favor of this 
bill think it is such a great idea to do it in this case, if they think 
it is such a great idea to require that they have to violate a criminal 
law before you can sue them, then why not just pass that law for 
everybody? Why not make it the law of the land that in any civil suit 
in this country you have to have violated a criminal law? Why not 
change our civil law, turn it upside down, in all 50 States of the 
Union, if it is such a great idea?
  I do not see anybody coming to the floor who is in favor of this bill 
saying it is such a great idea to do that. I do not see anybody 
proposing to do that. Yet they want to do it for one set of victims. 
They want to single out one set of victims. If you are a victim of 
guns--and it could be that somebody, a manufacturer, a gun dealer, has 
been negligent--we are going to require, for you to get inside the 
courthouse door, for you to even enter the courthouse door, before you 
can get what every American has the right to have--and that is a trial 
by jury, a trial, the opportunity to have your case heard by a judge 
and a jury--we are going to require you to prove there has been a crime 
committed.
  We do not require that for any other group of people. So if they 
think it is such a great idea, let them come to the floor and propose 
that, to make it a universal law for every civil suit in the country.
  I would like to talk for a moment about the language in this bill 
that might well prevent the Government from enforcing our gun laws 
against irresponsible gun dealers. This provision goes well beyond 
barring civil suits by private citizens who have been wronged. This 
provision is a new provision. It was not in last year's bill. This 
provision potentially curtails the ability of the Bureau of Alcohol, 
Tobacco, and Firearms, the ATF, from enforcing the gun laws that are 
currently on the books.
  Two former ATF Directors recognize the potential harm that comes from 
this provision. According to Stephen Higgins, ATF Director from 1982 to 
1995, and Rex Davis, ATF Director from 1970 to 1978, this broad, new 
language contained in this legislation in front of us today would 
likely prohibit the ATF from initiating proceedings to revoke a gun 
dealer's license, even when that dealer supplies guns to criminals.
  Let me repeat that. According to both of these former ATF Directors, 
this broad, new language would likely prohibit the ATF from initiating 
proceedings to revoke a gun dealer's license, even when that dealer 
supplies guns to criminals.
  So not only are we shielding these bad apples, bad actors, people who 
ought to not be doing business, not only are we shielding them from 
civil liability, now we are coming along and saying the ATF cannot 
enforce the law against them. What in the world are we thinking?
  I think that everyone in this body can agree it is important for us 
to enforce gun laws that we have on the books. Why in the world is 
there attached a provision to this bill that would make it harder for 
ATF to enforce our laws and shut down wayward and dangerous gun 
dealers? Why in the world would we want to do this? I don't know.
  Why would we want to strip away the opportunity of a gun victim to 
get into court? Why do we want to do either one of those things? I 
guess the answer is pretty simple. This bill ties the ATF's hands, ties 
the hands of private citizens, ties the hands of State and local 
agencies. It shields a certain group of defendants--gun manufacturers 
and dealers--from liability. This bill grants immunity. It overturns 
well over 200 years of civil law, 200 years of tort law, 200 years of 
common law.
  If it passes, this bill would fundamentally change our justice 
system. It would do this by denying one group of citizens access to the 
court system in order to protect another group.
  Why in the world are we about to do this? The only reason I can think 
of is because there are the votes here to do it. There is the power to 
do it. It can be done. One group in the country can get it done.
  Now, Mr. President, I can count. I know how this vote is going to 
turn out. But that still does not make it right. Just because there are 
votes to pass this legislation does not mean it is the right bill for 
our country, for the victims, or for the American people.
  I said this last year, and I will say it again. I will make a 
prediction about this bill. I will make a prediction about the effect 
it will have on this group of victims. Yes, the passage of this bill 
will get rid of some frivolous lawsuits. There is no doubt about that. 
We could get rid of a lot of frivolous lawsuits in this country by 
prohibiting access to the courthouse. There will be lawsuits that will 
never be filed because of this bill. That is true. There is no doubt 
about that.
  But, Mr. President and Members of the Senate, mark my words: If this 
bill passes, in the future there will be a case, or cases, that will be 
so egregious, so bad, that it will sicken your stomach, and Members of 
this Senate will read about it, and Members of this Senate will look up 
from their paper, or will look up from the evening news, and will say: 
I didn't intend to do that. I didn't intend for that victim not to be 
able to go into court. I didn't intend for that child, that man, that 
woman not to be able to sue that defendant. Oh, I never intended that.
  There will be that case, and that day will come. And whether it is a 
terrorist who is the defendant or whether it is some horrible criminal 
or whether it is some horribly negligent gun dealer--whoever it is--
there will be some case, and we will see it, and we will live to regret 
this day. You cannot arbitrarily close the door to the courthouse and 
say, ``You cannot come in, victim, if you are of a certain class,'' and 
not

[[Page S9240]]

have injustice done. You cannot do it. That day will occur, and we will 
regret what we are about to do.

  There is an additional aspect of this bill that has not been talked a 
lot about; and that is the fact that it is retroactive. It would 
actually kick existing cases out of court. How dare we do that. How 
dare we have the audacity to do that. How dare we in this Congress come 
to the Senate floor and wipe out every lawsuit that has been filed in 
this country that would come within the parameters of this bill. How 
arrogant are we to do that? Did we really get elected to the Senate to 
tell crime victims that their case is frivolous, without ever even 
knowing the facts of that particular case?
  We will have in front of us, in a few weeks, a Supreme Court nominee. 
There will be a lot of talk, as there already has been, about the 
separation of powers. There will be a lot of talk about judicial 
restraint, as well there should be. I probably will be talking about it 
as well.
  What about legislative restraint? We do not talk much about that. We 
get mad here on Capitol Hill when we pass a bill and the Supreme Court 
says we did not have the power to pass that bill. I think we should 
remember what our role is. I do not think anyone elected us to the 
Senate to bar their ability to go into court--not to completely bar the 
door. I think it is one thing to set standards and parameters and maybe 
limits. You can talk about that. But to totally say, ``You can't go 
into court,'' I think we ought to think long and hard before we do 
this.
  If passed, this bill would kick people out of court retroactively. It 
would not just bar people from coming to the courthouse. Apparently, 
that is not enough. No. What this bill does is kick people out who are 
already in court. It kicks people out who have already survived motions 
to dismiss and motions for summary judgment. It likely even tosses out 
victims who have won at trial and are defending their cases on appeal. 
To me, that is just plain wrong.
  The courts are supposed to decide these cases. Juries are supposed to 
decide them. People are supposed to have their day in court. That is 
how our system is supposed to work. I do not think it is my job or the 
job of other Members of the Senate to judge these cases. It is not our 
job to determine whether these cases should or should not proceed. It 
is not my job to determine whether someone is negligent or is not 
negligent.
  I also think it is not my job to tell a victim that he or she does 
not have the right to go to court and present a case to a judge or a 
jury. People in this country are supposed to have their day in court. 
That is fundamentally the American way. This bill creates two classes 
of victims in this country. If you are injured by any industry in 
America, you can file a lawsuit in State court in an attempt to redress 
your injury. After the passage of this bill, however, if you are 
injured by the gun industry, you are likely out of luck.
  Other industries face legal challenges. Other industries, other 
defendants, have had lawsuits filed against them they do not like. 
Other defendants, every single day in this country, face suits that in 
their eyes, many times, are frivolous, that they cannot stand, that 
they do not think are fair. But they are not here petitioning us, 
telling us we should pass a law that blocks the ability of someone to 
sue them. Other industries are involved in cases where many people die. 
We understand that. We do not grant to them this kind of immunity from 
civil liability.
  I support the second amendment. I support individuals' rights to own 
guns. I support gun manufacturers. I support legitimate gun dealers. 
And I support responsible tort reform. I certainly understand there are 
some abuses in the system, and that sometimes Congress needs to act to 
prevent these abuses. For example, just recently, I voted in favor of 
class action reform, and we passed that legislation to modify certain 
class action procedures.
  But what we are about to do in this Congress, in this Senate, is 
wrong. This bill keeps victims out of court altogether. This bill is 
unfair to victims. But more important than that, it is a horrible 
precedent. If we do this, this time, what is to stop a future 
Congress--where there are the votes, maybe configured differently--from 
saying: ``Oh, there is another group of victims, and we need to protect 
them, another group of victims that we are not going to protect, 
another group of defendants that we are going to protect, another group 
of victims to whom we are going to say, you can't sue them, you can't 
get your day in court''?

  If we deny this group of victims in front of us today their rights, 
what is to stop a future Congress from denying another group of victims 
their rights?
  We need to think about this long and hard before we cast this vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.


                           The Good Neighbor

  Mr. BYRD. Mr. President,

     The roses red upon my neighbor's vine
     Are owned by him, but they are also mine.
     His was the cost, and his the labor, too,
     But mine as well as his the joy, their loveliness to view.

     They bloom for me and are for me as fair
     As for the man who gives them all his care.
     Thus I am rich because a good man grew
     A rose-clad vine for all his neighbors' view.

     I know from this that others plant for me,
     That what they own my joy may also be;
     So why be selfish when so much that's fine
     Is grown for me upon my neighbor's vine?

  The appreciation of a good neighbor is among the oldest, most 
cherished, and enduring of human values. It is a value that transcends 
both time and space.
  This value was vividly and eloquently expressed more than 2,000 years 
ago in the Bible which commands us in eight different passages to love 
our neighbors: Leviticus 19:18, Matthew 19:19, Matthew 22:39, Mark 
12:31, Luke 10:27, Romans 13:9, Galatians 5:14, James 2:8. In fact, 
this is one of the most repeated commands in the Scripture. In other 
passages, the Bible tells us how to treat our neighbors, Proverbs 25:17 
and Romans 15:2; and in others warns us against mistreating our 
neighbors, Deuteronomy 19:14, Exodus 20:16, Proverbs 3:29.
  The appreciation of a good neighbor is also a value that knows no 
cultural or geographical boundaries. An old Chinese proverb, for 
example, maintains that ``a good neighbor is a found treasure.''
  In the United States, towns and states celebrate Good Neighbor Days. 
Across the country, municipalities, corporations, radio stations, and 
newspapers present Good Neighbor Awards. Stores and businesses proclaim 
``Good Neighbor Days'' to promote sales. Since the early 1970s, the 
Federal Government has celebrated an annual Good Neighbor Day. This 
year Good Neighbor Day will be observed on September 25.
  The web site for the national Good Neighbor Day points out that 
``being good neighbors is an important part of the social fabric that 
makes ours a great country.'' Indeed it is. Good neighbors are always 
there when you need them, offering a helping hand, providing comfort.
  Seldom have I observed a stronger sense of neighborliness than among 
the coal miners in the West Virginia communities where I spent my 
boyhood years. Fred Mooney, a leading figure in organizing the West 
Virginia coal miners in the early Twentieth Century, in his 
autobiography, ``Struggle in the Coal Fields,'' recalled how his coal-
mining neighbors, although themselves quite poor, sacrificed to help 
him and his family with food and clothes after he had been fired from 
his job and blacklisted for his union activities. Mooney explained, 
``This is the spirit of fellowship, love, and devotion that permeates 
the life of a union coal miner. He will give until it hurts and then 
divide the rest.''
  That, Mr. President, is loving thy neighbor: ``giv[ing] until it 
hurts'' and expecting nothing in return.
  I have observed this sense of neighborliness following mine 
explosions, floods, and other disasters that have befallen on my state 
over the years. I will never forget how the people of Buffalo Creek, 
WV, came together following a disastrous flood in that community. How 
they worked together and shared together while caring for and 
comforting each other, thus enabling themselves and their neighbors to 
survive that horrible tragedy. Being a good neighbor involves most 
often small, simple acts of kindness. The former Speaker of the House 
of Representatives, Tip O'Neill, liked to point

[[Page S9241]]

out that ``all politics is local.'' Being a good neighbor is also 
local. It begins right over the backyard fence. It involves small, 
simple acts of kindness, as well as dramatic gestures during 
catastrophic events.
  A good neighbor is the friendly face who shows up with a cake or a 
pie at the house of a family who has a member who is ill. A good 
neighbor is a person who mows the lawn of the widow down the street. He 
may be the handyman who is quick to pull out his tool belt when a 
neighbor has a busted pipe, or a mechanic who starts his neighbor's car 
on a cold winter morning so he can get to work. He is a neighbor who 
will cheerfully shovel your sidewalk when it snows, or rake leaves, 
just to make life easier for you.
  Such simple acts of kindness are part of the social fabric that makes 
for a better community, a better country, and a better world.
  I am thinking now of a neighbor who lives about 3 miles from where I 
live in McLean, VA. I have known him a good many years. His name is 
James Nobles. Jim Nobles is a neighbor who is always seeking ways to 
help my wife Erma and to help me. Many is the time that he has come to 
my home and sat and talked with my wife, who has gone through a long 
period of illness, an illness of going on 5 years. Many times Jim 
Nobles has come by and sat on the front porch with Erma and talked with 
her. So when Erma and I have been busy or tired, Jim Nobles somehow 
appears at our door with a basket of food or a cake from the local 
Giant store. He provides us with transportation if we need it.
  On cold winter days, often to my surprise and my delight, I have 
looked out the glass windows, and I have seen him out shoveling the 
snow from the walkway to the mailbox. I find he has already shoveled 
the snow off my sidewalk.
  When he is able, he makes sure that my newspaper is on my porch in 
the morning. There it is, the Washington Post. There it is, Roll Call. 
There it is, The Hill. Jim Nobles gets up, comes over to my house, 3 
miles from where he lives, and brings the papers off the sidewalk onto 
my porch. I can always tell that it is Jim Nobles because he also 
places the newspapers in the same fashion in the same place right there 
at my door. That is a good neighbor. He comes when my hedges have grown 
a little too long. He tops off the hedges. He shapes them up. When 
there are some dead limbs on the trees in my front yard, he cuts off 
those dead limbs and hauls them away. That is Jim Nobles.
  Sometimes Jim goes on a vacation. He is retired now. He goes on a 
vacation. He has a place somewhere down in Virginia, perhaps 100 miles 
away or more from where we live. Sometimes he goes and spends a few 
days there at that place. Then what am I to do but go out and get the 
paper. I have to get up, go out and get the newspaper. It is not a 
great chore, but it is something.
  But lo, to my surprise, the newspaper keeps on being delivered to my 
door. So for quite a while, I wondered, who is the other good neighbor 
who pinch-hits when Jim Nobles is away?
  On two or three occasions, I have sat up just to try to catch that 
other good neighbor delivering that newspaper. I remember on one 
occasion I got up early and I put a little chair beside the front door 
and I sat there and watched, waiting for that person to walk up and 
deliver my paper. Jim Nobles was away. But, you know, that neighbor on 
that particular occasion didn't come, didn't deliver that paper.
  So time has gone on, and this morning, I decided I am going to catch 
this neighbor this time--this good neighbor who delivers my newspaper 
when Jim Nobles is away on vacation. So there I sat. This time, luck 
was with me. I saw her come down the street, pick up the newspaper, 
pick up the Roll Call and The Hill. She came up to the door and put the 
papers in the spot there and away she darted. It was then that I turned 
the key in the door. I said, ``Lady, would you wait just a minute? I 
want to know more about you. What is your name? I want to thank you for 
delivering this to my door when Mr. Nobles is not here.''
  I came to find out that this was a lady from the Philippines. She 
worked in the area. She doesn't live in the immediate area, but she 
comes into the area on a bus, she gets off the bus, and on her way to 
the residence where she works during the day, she stops, picks up the 
newspaper out there on the sidewalk near my mailbox, walks up to my 
door, and puts that paper down. Finally, I found this caring, good 
neighbor whose name I had been wishing to learn. Her name is Ms. Mary 
Lucas, from the Philippines. I told her this morning that I was in the 
Philippines 50 years ago this year. I had breakfast at that time with 
the late President Magsaysay, who was later killed in a plane crash.
  So there she was, a good neighbor making her way to work, doing a 
special favor for someone like myself and then going on, not receiving 
my thanks. This could have gone on a long time, as it had already gone 
on a long time. I finally found her and found out her name.
  I must confess that at times I feel a little guilty because I am not 
a better neighbor. My work in the Senate, my family life, and my other 
responsibilities prevent me from performing the kind, neighborly acts 
that Mr. Nobles and Ms. Lucas have performed for me over the years. But 
they, in the truest neighborly ways, never expressed any complaint. 
They never want anything in return; they never expect anything in 
return. They just want to be good neighbors. And they are. Indeed, they 
are treasures.
  Mr. President, I wish to take a few minutes of the Senate's time to 
say how fortunate I am to have such good neighbors. I thought it might 
encourage all of us to think a little more about being better 
neighbors. It is the human touch that makes a better community, a 
better country, a better world. And so on this day in July, in this 
year of our Lord, I want to thank God for good neighbors, for the 
inspiration they have given to me and to Erma, for the goodness they 
have shared with her and with me.
  I close with a bit of verse by Edgar Guest:

     I have a kindly neighbor, one who stands
     Beside my gate and chats with me awhile,
     Gives me the glory of his radiant smile
     And comes at times to help with willing hands.
     No station high or rank this man commands;
     He, too, must trudge, as I, the long day's mile;
     And yet, devoid of pomp or gaudy style,
     He has a worth exceeding stocks of lands.

     To him I go when sorrow's at my door;
     On him I lean when burdens come my way;
     Together oft we talked our trials o'er,
     And there is warmth in each good night we say.
     A kindly neighbor! Wars and strife shall end
     When man has made the man next door his friend.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, for my fellow Senators, let me try to bring 
us up to speed on where we are. We now have all of the amendments filed 
and are looking at them and have studied a good number of them over the 
last hour and a half to determine how we might dispose of them. We are 
hoping we can put something together.
  Senator Warner from Virginia is here to talk a bit more about his 
legislation. I see my colleague, the floor manager from the Democrat 
side, also here. I do want Members to know we are working to see if we 
cannot bring some finality to this process in a precloture environment 
or resolve that issue so we can complete our work on not only this but 
clear the issue of an energy conference which is privileged, a CAFTA 
recognition of the House bill versus the Senate vehicle, which is 
privileged, and that can come before us so that we can complete our 
work in a timely fashion tomorrow and not spill ourselves into 
Saturday, as could be the case strictly under the rules of the Senate. 
We hope we may be able to avoid that.
  I hope that within a little while, we may be able to look at a 
package and offer it to our colleagues for their consideration.
  Mr. REED. Will the Senator yield?
  Mr. CRAIG. Yes.
  Mr. REED. Mr. President, I appreciate the cooperation and 
collaboration. I am pleased also that you are looking closely at these 
amendments. My position is simple. I believe the amendments are 
relevant. I hope we can have votes on all of them. I particularly think 
Senator Warner's amendment is relevant, pertinent, and important. I 
hope he can offer that. But it is my hope that we can bring all

[[Page S9242]]

of the pertinent amendments up, with appropriate timing, and conclude.
  As we stand now, as the rules require, there will be a cloture vote 
sometime tomorrow. I think I understand also that after that cloture 
vote, moving from the gun liability bill to any of the other 
provisions--energy or the Transportation bill--would require unanimous 
consent. That is another factor that should be considered. So I hope we 
can resolve this this evening.
  Mr. CRAIG. I thank my colleague for that concern. We will be diligent 
in it. As you know, in the current environment, these conference 
reports are privileged and they can take us off the floor by the action 
of leadership for that consideration. That might occur later in the 
evening tonight. I am not sure that is the case, but that could occur.
  Mr. REED. If I may say, my understanding is that once cloture is 
invoked, to move off the 30 hours of cloture cannot be done by a 
privileged motion, but by unanimous consent.
  Mr. CRAIG. I don't dispute that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, I thank the managers of the bill for 
keeping the Senate advised. I have an amendment that has been filed. I 
think at this point I will make the motion and ask for the reaction of 
the managers.
  Mr. President, at this time, I ask unanimous consent that we lay 
aside the pending amendment such that my amendment No. 1625, which is 
on file, could be given the status of the pending amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAIG. Mr. President, reserving the right to object. Under the 
current environment, I will object.
  I do so with this concern in mind. I don't question the sincerity of 
the Senator from Virginia for the offering of his amendment. I will say 
that it is similar to but not exactly like the Levin amendment that we 
have just disposed of. It deals with the issue of negligence or 
reckless conduct.
  There are differences, and the Senator from Virginia may wish to 
point those out. But it is important for the Senate to know that in 
their similarities, the Senate rejected overwhelmingly, by the largest 
vote yet, the issue of negligence and reckless conduct, for it is 
clearly recognized now by a majority of the Senate that this would 
drive a major loophole through this legislation and deny the very 
legislation and its intent. I certainly would not want that to happen. 
For that purpose, I will object to laying aside the pending amendment 
and bringing the Warner amendment to the Senate floor at this time.
  The PRESIDING OFFICER (Mr. Martinez). Objection is heard.
  The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my good friend for being 
absolutely forthright. I am fully aware of the parliamentary situation. 
The distinguished majority leader and the Democratic leader--to the 
extent that he has participated--are acting within the rules of the 
Senate. I do not ascribe any impropriety whatsoever to the exercise by 
any Senator at any time of the rules of the Senate. But it does put 
persons like myself who feel very strongly about amendments we have in 
a unique situation. I would like to support this bill, but I have grave 
reservations about those provisions relating to the dealers, and I'd 
like to have my amendment considered. I will express them momentarily. 
But the parliamentary situation, as the Senator has explained, does not 
allow me the opportunity at this juncture--although I may persist by 
other means--to get this amendment to be given the pending status.
  I inquire of the Presiding Officer if the Parliamentarian would 
examine amendment No. 1625 to determine whether it is germane.
  The PRESIDING OFFICER. The Chair advises the Senator that the 
amendment is germane to the bill.
  Mr. WARNER. I thank the Chair. So I have here an amendment that is 
clearly germane. I regret deeply that I am not able to bring it up such 
that I and other Senators could debate it and have a rollcall vote, 
which I would ask for, and if granted, we could allow each Senator to 
express his or her views on this amendment.
  Now, the manager said that we had a debate on the Levin amendment, 
and I supported the goal of the Senator from Michigan. And I listened 
to my distinguished colleague from Ohio as he spoke on this general 
subject. But my amendment is quite different from the Levin amendment. 
The Levin amendment would cause the gun industry, as some said, to 
suffer a death by a thousand cuts because it would essentially gut the 
bill. The Warner amendment does not come anywhere near to gutting the 
bill.

  I feel very strongly that of the gun dealers across this country, if 
we were able to make an assessment and evaluation, 99 percent of them 
are law-abiding citizens. They not only want to stay within the law, 
but they also do not want to be a part in any way of the use of a 
firearm that might be involved in a crime.
  My amendment is to focus in on those dealers who have, over a period 
of time, experienced, again and again, the loss of firearms from their 
inventory. And if it can be factually established that a dealer has a 
record of practices that for one reason or another--probably due to 
negligence--enables weapons in that dealer's inventory to find their 
way illegally into the hands of criminals, then that dealer should not 
be granted the benefits afforded by this bill. Nor should such dealers 
be spared from a closer inquiry into why they have an established 
record of having guns go out of that dealership that they cannot 
account for.
  My amendment does not affect the protection from the frivolous 
lawsuits that exist under this bill. My amendment only addresses that 
narrow category of dealers who have a record of, again and again, 
mismanaging their inventory in such a way that they cannot account for 
a large number of weapons.
  More specifically, my amendment does not take away the protections 
which 99 percent of the gun dealers should be able to avail themselves 
of, the honest ones, under this bill. I don't do that. My amendment is 
solely directed at those very few--I repeat, very few--dealers who have 
established a history of lost or stolen weapons as defined by the 
Attorney General of the United States pursuant to regulations that my 
amendment would call upon the Attorney General to promulgate for the 
industry. My amendment would enable the industry and, most 
particularly, the small gun dealers to know exactly what are the 
regulations that should be followed to maintain that inventory and 
conduct their business so that weapons cannot disappear and, by such 
disappearance, fall into the hands of criminals. That is what my 
amendment does. Maybe 1 percent of the dealers would be affected by 
this amendment. The other 99 percent are accorded the benefits of the 
underlying legislation.
  Why can't we in the Senate voice our opinions on this concept? 
Regrettably, the decision has been made that at this time the amendment 
cannot be, even though germane, brought up in such a way as the entire 
Senate can focus upon it.
  My amendment is not an attempt to gut the bill. Indeed, I recognize 
the gun industry, as I said last night, needs some reasonable, 
balanced, measure of tort reform. My amendment is offered in good 
faith, I say to the Senate. It is not just to protect the possible 
victims from criminal use of a weapon, but it is to protect the law-
abiding gun dealers.
  If this legislation remains as it is now, without some type of 
correction, such as mine, there will undoubtedly be unintended 
consequences.
  We need look no further than our own backyard, based on the 
experiences we had here in the Nation's Capital and in adjoining 
Maryland and in my State of Virginia, with snipers committing wanton 
murder. The snipers illegally obtained their gun out of a gun shop that 
the record shows lost over 200 weapons over a period of a year or two. 
If another such tragic incident were to occur with a gun dealer who had 
a similar record of irresponsibility, and that gun dealer was immune 
from lawsuit, that would cast a very negative feeling all across 
America toward the gun industry and the gun dealers. They would be 
called to task to explain why they supported a law, if this is to 
become law, that would allow that to happen.
  My words are one thing, but I want to bring to the attention of the 
Senate

[[Page S9243]]

a document that I find very interesting. In my modest career in the 
Nation's Capital and in Virginia, I have met a number of lawyers in my 
time, but one whom recently passed on--I remember working with him on a 
number of cases, even when I was in private practice--I will never 
forget. I go that far back, knowing Lloyd N. Cutler of the prestigious 
law firm of Wilmer, Cutler, and Pickering.
  Lloyd Cutler was asked by the Brady organization--Jim Brady, we all 
remember, was President Reagan's press secretary who suffered a 
frightful injury at the time there was an assassination attempt against 
our President. He and his courageous wife in the ensuing years have 
been unrelenting in their efforts to try and have a balance across 
America between the rights of those who acquire guns under the second 
amendment--and I strongly support the second amendment of the 
Constitution.
  But in any event, on January 15, 2004, Mr. Cutler wrote the 
organization which asked him to diagnose cases and the basic tenets and 
provisions of the legislation that is pending today.
  I ask unanimous consent to print portions of this opinion into the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                   Wilmer, Cutler & Pickering,

                                 Washington, DC, January 15, 2004.
     Re effect of S. 1805 (108th Cong.) on Johnson, et al. v. 
         Bull's Eye Shooter Supply, et al., No. 03-2-03932-8 
         (Wash. Super. Ct.)

     Mr. Michael Barnes,
     President, Brady Campaign to Prevent Gun Violence, 
         Washington, DC.
       Dear Mr. Barnes: As you have requested, I have reviewed the 
     likely effect on litigation brought against a firearms 
     manufacturer and dealer in Johnson, et al. v. Bull's Eye 
     Shooter Supply, et al., No. 03-2-03932-8 (Wash. Super. Ct.), 
     if S. 1805 (108th Cong., 1st Sess.) were enacted into law in 
     its current form. . . . The Johnson case is a suit for 
     damages brought by victims of the Washington, D.C., area 
     snipers, John Allen Muhammad and Lee Boyd Malvo, against 
     Bushmaster Firearms, Inc., the manufacturer of the semi-
     automatic assault rifle used by Muhammad and Malvo, and 
     Bull's Eye Shooter Supply, the firearms dealer from which 
     Malvo allegedly stole that rifle. S. 1805, also known as the 
     Protection of Lawful Commerce in Arms Act, would broadly 
     prohibit many kinds of civil actions against manufacturers 
     and dealers of firearms for damages resulting from the misuse 
     of firearms manufactured by or obtained from them.
       S. 1805 contains much of the language of an earlier bill, 
     S. 659 (108th Cong., 1st Sess.), which similarly would 
     broadly prohibit civil actions against firearms manufacturers 
     and dealers.

  Mr. WARNER. Mr. President, I will read the last paragraph:

       Accordingly, I conclude that the Johnson case does not fall 
     within the saving provision of the Daschle amendment or any 
     other saving provision of S. 1805 would have to be dismissed 
     if S. 1805 were enacted into law.

  S. 1805 is legislation from the 108th Congress that is nearly exact 
to the bill before us today in the Senate. The Johnson case is a case 
brought by the victims of the DC snipers--I repeat, the DC snipers, the 
serious murders about which I spoke. Those victims could not have 
collected had this underlying legislation before the Senate been law at 
that time.
  Is that what this Senate wants? I don't think so. I think I, and 
possibly other Senators, deserve the opportunity to go into greater 
length with regard to that provision which does not by any reading give 
the protection that is needed to victims should a dealer again and 
again have lost or stolen weapons from its inventory utilized for 
purposes of a crime. The bill as drafted does not give the protection 
we need, and I simply ask, let us impose on the Attorney General of the 
United States, if this legislation were to pass and remain on the books 
for an indeterminate period, let that Attorney General of the United 
States decide how best to analyze the gun dealers to establish a 
framework of regulations that would guide them in the conduct of their 
business such that we hope a weapon would never escape the inventory 
and find its way into the hands of the criminal.
  I fear some day we are going to see another case. I hope not. But if 
we do, maybe somebody will come back and examine the record of this 
colloquy and this debate and reflect on the gun industry's desire to 
get legislation that does not protect the American public against the 
negligence and wrongful actions of a very small percentage of gun 
dealers, maybe at most 1 or 2 percent. That is all I ask.
  I see the manager. Does the manager wish to pose a question?
  Mr. CRAIG. I do not. I was only going to respond briefly to the 
Senator.
  Mr. WARNER. Please. I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, again, I don't question the sincerity or 
how the Senator from Virginia feels about this issue and the amendment 
he has offered. But I think it is important to recognize how the 
current law works.
  It does not mean it is perfect, and it does not mean it is always 
effective. But the Bull's Eye arms dealership in the State of 
Washington, from which John Muhammad and Lee Malvo, the two snipers who 
terrorized Washington, Northern Virginia, and Maryland for a time, 
stole their firearm, had a record of repeated recordkeeping violations 
and, as a result of that, their license was pulled. The owner of that 
dealership no longer has his license.
  I don't know if the Bull's Eye is still in business, but if it is, it 
is under a new dealer. Why? Here is the reason why. If you are a 
licensed firearms manufacturer in the United States--and all are under 
the Federal firearms licensing--whether you are a manufacturer or a 
licensed dealer, you must report within 48 hours missing weapons. If 
they have been stolen or misinventoried, they have to be reported. They 
have to be reported to the ATF, and they have to be reported to local 
law enforcement officers in the area as a possible theft, meaning that 
those guns are out there in the market. So there already is a Federal 
law and a mechanism that is at work to attempt to accomplish this.
  If, by that reporting, negligence can be demonstrated, this bill does 
not protect in any sense of the word negligent entrustment. That is 
very clear.
  It was argued by a variety of our colleagues earlier in the day as it 
related to the Levin amendment--and that is the connective thread I 
spoke about earlier--it is important to understand that we are not 
without very strict laws today as it relates to the control of 
inventories of firearms in federally licensed firearms dealers' 
business locations and manufacturers. If there is a demonstration of 
negligence, licenses can be pulled and those people can be taken out of 
business, and they are.
  Of course, in the case of the DC snipers--the tragedy we all lived 
through here--we know the end result tragically enough--people lost 
their lives. One of those men will be executed and the other is now in 
prison for life, and the dealership, or at least the owner of that 
dealership at the time, is out of business and will not get another 
license. That is the situation.
  It appeared at least that they made mistakes in their recordkeeping. 
As a result of that, they lost their license. If that is the case--I 
cannot argue, I am not an attorney--that is a clear case of negligent 
entrustment, but it appears it may have been--if that is the case, I am 
quite sure that prosecution will move forward. If it is not, so on. 
Now, in the case of the West Virginia incident that we all know well, 
the lemon jello case, a straw dealer or a straw purchaser, the firearms 
dealer was wise to it, and as a result reported it. So I think it is 
important to suggest that the law is out there and the law is clear and 
the ATF enforces the law. The law says firearms stolen, report it; 
inventory off, report it; 48 or you run the risk of losing your license 
and being put out of business, manufacturer or dealer.

  So I do not want any of our colleagues to assume that this is an open 
area of the law. It is not. By the level of enforcement that the 
Federal Government and the Justice Department can deliver, it is a 
clearly enforceable and an enforced section of firearms law in this 
country. I think that is important for the record to demonstrate.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I would like to reply to my good friend. 
The Senator is absolutely correct about the reporting requirements, but 
the reality is that some dealers ignore those requirements. They are 
totally unscrupulous, negligent, and ignore them. The recordkeeping 
requirements did not

[[Page S9244]]

prevent Bull's Eye from losing 200 guns. They went ahead and ignored 
it. I strongly urge that we allow my amendment. It is but really one 
sentence. It simply says: On page 8, line 21, before the semicolon 
insert the following, or an action against a seller that has an 
established history of qualified products--that is the guns--being lost 
or stolen, under such criteria as shall be established by the Attorney 
General of the United States by regulation for an injury or death 
caused by a qualified product that was in the possession of the seller 
but subsequently lost or stolen.
  We have to have a stronger enforcement mechanism than is in the 
underlying bill. It has to be strengthened. I say to my good friend, I 
respectfully disagree, and I think the confirmation by this 
distinguished counsel, Lloyd Cutler, who concluded that had this 
statute that the Senator seeks been in effect at the time of the 
snipers, they could have gotten out from under it.
  Some sellers of guns repeatedly are losing firearms or having guns 
stolen and that is irresponsible behavior on its face. It has to be 
regulated, and it has to be regulated by the chief law enforcement 
officer of the United States, the Attorney General.
  So I thank the Senator for the opportunity to speak to this. I once 
again plead with the Senator to allow this amendment, which is germane. 
If it were not germane, I would say to myself I gave it a good try. I 
ask the distinguished Senator from Rhode Island, is this amendment of 
mine involved in any discussions, might I inquire?
  Mr. REED. I say to the Senator from Virginia, we think his amendment 
is very commendable, and we would like to see it brought forward for 
debate and a vote. I have made that point privately, and I make it now 
publicly. We think it is, as the Senator says, germane and relevant. I 
think the Senator is owed a vote, and I would like to see it happen.
  Unfortunately, we are having difficulties clearing any amendments, 
including the Senator's, for voting on the floor.
  Mr. WARNER. Mr. President, it was my understanding that the 
distinguished Senator from Rhode Island and the distinguished Senator 
from Idaho were working on a possible package of amendments, and the 
Senator now advises me my amendment is in that package under 
consideration. Is that a fact?
  Mr. REED. I have asked that that amendment be considered. We are 
waiting. We were not impatient, but there is a limit to patience. I 
would point out, too, that there will be an attempt this evening to 
move to other matters such as CAFTA and the Energy bill which will take 
away time to debate a vote on the pending gun liability bill. I just 
think we have wasted too much time, that we should establish some rules 
with respect to the amendments, vote on those amendments and move 
forward towards a cloture vote.
  Mr. WARNER. If I may make a brief reply, I thank my colleague from 
Rhode Island. I think the managers are working on this situation. I am 
glad that my amendment is part of the consideration, and I just hope it 
is granted. As far as the business of the Senate, I entrust it to the 
majority leader and the Democratic leader as to what matters should be 
taken up at what time in relation to this bill. So I cannot make any 
comment on that and do not make one.
  The PRESIDING OFFICER. The minority leader.
  Mr. REID. If I would not offend my distinguished friend from Rhode 
Island or my dear friend from Virginia, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allen). Without objection, it is so 
ordered.

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