[Congressional Record (Bound Edition), Volume 146 (2000), Part 1]
[Senate]
[Pages 337-339]
[From the U.S. Government Publishing Office, www.gpo.gov]



                BANKRUPTCY REFORM ACT OF 1999--Continued

  Mr. SMITH of New Hampshire. Mr. President, I would like to speak 
briefly about two amendments that are before the Senate--the Schumer 
amendment on abortion and the Levin amendment dealing with the so-
called gun carve-out.
  When I took my oath of office on the floor of the Senate, I swore to 
support and defend the Constitution of the United States. I am amazed 
sometimes at the type of things we face in the Senate with amendments 
and bills that I find to be unconstitutional, at least the way I read 
it.
  These two amendments I am referring to essentially harass Americans 
who are defending three of our most important constitutional rights--
the right to life, which is guaranteed by the 5th and the 14th 
amendments, the right to free political speech, as guaranteed by the 
1st amendment, and the right to keep and bear arms, as guaranteed by 
the 2nd amendment.
  It is interesting, as one listens to the debate on these respective 
amendments, some take the position that it is OK to support the 2nd but 
not the 1st; it is OK to support the 1st but not the 2nd; some say it 
is OK to support the 1st and the 2nd but not the 5th and the 14th. But 
they are all part of the Constitution. Unless you are going to remove 
an amendment, as we did once with the 21st amendment repealing the 
18th, then I do not think we have the right to stand here and say one 
thing is constitutional and something else is not.
  The Schumer amendment tries to exempt abortion protesters from 
claiming bankruptcy. This is an amendment that unfairly targets a 
legitimate form of civil disobedience. I believe there are some acts 
for which people should not be allowed to file for bankruptcy--such 
willful acts that might lead to a personal injury or the destruction of 
property. That is not what we are talking about here. I believe most 
student loans, taxes, child support, and alimony payments also should 
not be dischargeable.
  This amendment adding abortion protesters to the nondischargeable 
list under bankruptcy laws--let's call it what it is. It is nothing 
more than another attempt to financially bankrupt and silence free 
speech of those who peacefully--peacefully--want to speak out against 
something they believe in so strongly or oppose so strongly, and that 
is abortion, those who want to defend the constitutionally guaranteed 
right to life.
  On a talk show yesterday, this issue came up, this supposedly Roe v. 
Wade rule that abortion is legal under the Constitution. If someone can 
find the word ``abortion'' in the Constitution, where it says abortion 
is legal, I will be happy to change my position. If somebody will come 
down to the floor and point out to me where the word ``abortion'' and 
the right to an abortion appears in the Constitution--of course, it 
does not, and if it is not in there, then any power not specifically 
outlined in the Constitution belong to the States and the people.
  There is no right to an abortion under the Constitution. Roe v. Wade 
was a bad decision; it is an unconstitutional decision. Judges are 
fallible, they make mistakes, and they made a mistake when they passed 
that awful decision which has taken the lives of 40 million children--
40 million children since Roe v. Wade passed in 1973, 40 million 
children who will never have the opportunity to live their dreams, 
never have the opportunity to be a Senator, to be a President, to be a 
doctor, to be a mom, a dad. Gone. We took them away, almost one-sixth 
of the entire U.S. population, under that decision, and it is an 
unconstitutional decision because a young child inside the womb or 
outside has a constitutional right to life.
  Let's talk about what this amendment does.
  Antiabortion protests, no matter how you feel about abortion, is 
political speech, I say to my colleagues. This is political speech. 
They have a right to speak. I am not talking about protesters who 
commit violent acts or commit bodily harm to others. I am not in favor 
of that, nor should we tolerate that. I am talking about people 
standing outside a clinic holding a sign, praying, protesting 
peacefully. That is what this amendment is going after. People who do 
that are now going to be subjected to this provision on bankruptcy, an 
unfair provision.
  It is political speech for somebody to peacefully protest abortion 
just as much as it is political speech for union organizers or urging 
other workers not to cross a picket line. What is the difference? Why 
don't we single them out? But we are not.
  My colleague Senator Schumer singles out one type of protest, a 
protest on an issue with which he disagrees. It is not constitutional, 
and it is not fair. It is political speech just as much as when the 
NAACP enforced its boycott of southern businesses. The Supreme Court in 
NAACP v. Claiborne Hardware said so. We already have enough laws on the 
books harassing abortion protesters, including the Freedom to Access 
Clinic Entrances, so-called FACE, and the Racketeer-Influenced and 
Corrupt Organizations Act, known as RICO. The financial penalties under 
these laws are harsh, unusually harsh for one specific type of protest 
or protester--a peaceful protester.
  This amendment proposes to give these protesters absolutely no way to 
deal with the treble damages against them under RICO. A recent RICO 
case against protesters who carried posters of aborted children 
resulted in $109 million against the pro-lifers; $109 million for 
peacefully protesting without harming anyone's person or property. It 
is outrageous. That ought to be enough to chill anyone's free speech. 
What is next? Free speech under the Constitution is protected.
  Another one of the RICO cases currently pending involves a Catholic 
bishop and religious brother praying the rosary in their car in the 
driveway of an abortion clinic peacefully.
  A pro-life gentleman in another case was standing on a walkway near 
an unused locked door of a clinic and was not blocking access to that 
clinic.
  How much are they going to have to pay for standing up for what they 
believe in, such as the marchers did during the civil rights movement 
when they sat at the lunch counters and marched in the streets? $200 
million? $1 billion? Where is it going to stop?
  Can you imagine RICO, which was originally drafted to fight mobsters 
and organized crime, now being used against civil rights demonstrators 
or antiwar protesters, or abolitionists protesting slavery? What will 
we say then? We know what we would say. We would say it is wrong, and 
it is wrong to protest those who respectfully, quietly, peacefully 
protest what they believe in, which is the right to life.
  It is a violation of the first amendment. This is a patently unfair 
discriminatory amendment, and it does not deserve even the dignity of 
being offered because it is so flagrantly unconstitutional.
  I urge my colleagues, when the vote comes tomorrow, to vote no on the 
Schumer amendment. Get it off the floor of the Senate because it does 
not belong here. We should not be talking about unconstitutional bills 
on the floor of the Senate.
  Another amendment which will be offered tomorrow is called the gun 
carve-out amendment, again, a discriminatory amendment against one 
group. The Levin amendment proposes to exempt gun manufacturers from 
bankruptcy laws. In other words, if you are a gun manufacturer, you 
cannot claim bankruptcy, you cannot be treated like everybody else.
  Why? Because the author of the amendment doesn't like gun 
manufacturers. I guess he believes they

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shouldn't be allowed to manufacture guns. Under current law, businesses 
and corporations can discharge their debts through bankruptcy unless 
the debt is incurred through negligence or intentional misconduct. I 
agree businesses should be held accountable if they are so 
irresponsible or malicious to knowingly sell harmful products, but are 
we really at the point in America when we are going to say if we 
produce a gun, manufacture a gun, legitimately, as a manufacturer, and 
then if somebody gets ahold of that gun and commits a crime, that now 
the manufacturer is responsible? Is this where we have come in our 
society now, no personal accountability, no personal responsibility?
  Why don't we do it with automobiles? Why not? You drive your 1999 
Chevy down the road, you hit somebody and kill them, it must be the 
automobile manufacturer's fault, not you. You are behind the wheel. You 
can't have any accountability or responsibility. Name another product--
a hamburger. There are people who say meat is bad for you. Maybe we 
should hold all of the cattle growers responsible for producing 
hamburger. Maybe we should hold the people who work in the meat packing 
plants accountable. Where is the individual personal responsibility and 
accountability?
  This is a discriminatory piece of legislation. Again, I regret it is 
here. The gun industry is selling a legitimate and lawful product. If 
it is banned, at least that is an honest amendment. I wouldn't agree 
with it, but at least it would be more honest than it is to say what we 
are saying, that we are going to exempt you from bankruptcy laws. It 
is, in fact, a product that is constitutionally protected and 
specifically mentioned in the second amendment. Everybody knows what it 
says. There is no secret. It is No. 2 on the amendment list, the Bill 
of Rights. The right of the people to keep and bear arms shall not be 
infringed, period. No qualifiers in there. It doesn't say what kind of 
gun; doesn't say how many guns; doesn't say manufacturer, no 
exceptions. It just simply says the right of the people--we are 
people--to keep and bear arms shall not be infringed. That is all it 
says. And if you have that right under the Constitution to have that 
weapon to protect yourself, as many do, then you ought to have the 
right to manufacture it.
  This amendment encourages litigation against gun manufacturers and 
should be called the legislation through litigation amendment. This 
amendment will have the effect, as follows: If someone sues a gun 
manufacturer, the manufacturer's bankruptcy will not stop the lawsuit. 
Outrageous. Gunmakers are already being forced out of business by 
frivolous, illegitimate, and unconstitutional government-sponsored 
lawsuits against them. How much more do they have to take? This is a 
constitutional amendment that specifically says you have the right to 
keep and bear arms and that right would not be infringed. There is no 
gray area. It is not as if there is something we have to interpret. 
There is nothing to interpret. It is right there. When the founders put 
the ten amendments, the Bill of Rights, onto the Constitution, they 
made it No. 2.
  This amendment singles out a legal industry for unfavorable treatment 
in bankruptcy proceedings. If successful, it is only going to hasten 
the demise of the gun industry. That is the purpose of it. That is what 
is behind this. It is the Bill Clinton agenda. It is being carried out 
in the Senate. Shut down gun shows. Shut down gun manufacturers. Stop 
the production of guns in America. Blame the gun manufacturers. Blame 
everybody except the person behind the gun who commits the crime. For 
goodness' sake, we wouldn't want to punish that person. Somebody else 
has to bear the blame. Maybe he had a bad childhood. It must be his 
father's fault, his mother's fault, the gun manufacturer's fault, the 
gun seller's fault--everybody but the fault of the person who uses the 
weapon.
  This is what we have come to in America. It is not going to stop 
here. If legislation such as this slips through, it will be a whole lot 
of things--hamburger, cars, cigarettes. How about a desk, a chair? You 
could hurt somebody with that chair if you hit them with it. Well, 
maybe we ought to sue the manufacturer of the chair. That is what it is 
coming to. That is how ridiculous it is. Right here in the Senate, we 
allow it to happen. We debate it day after day trying to stop this 
stuff as it comes at us in waves, unconstitutional laws. Somebody has 
to stand up--and some of us do--to stop it because it is outrageous.
  Gun controllers cannot win legislatively so they litigate. That is 
the way to do it. They can't get the American people on their side so 
they get a few unelected judges on their side. There are many 
industries that can be considered dangerous, as I said: Carmakers, 
alcohol, tobacco, fast food, whatever--legal businesses. Are they being 
singled out in this bankruptcy bill? No, not this one, but maybe next 
year or next week. Who knows? Just wait. It is going to happen sooner 
or later. These government-sponsored lawsuits against gun manufacturers 
and tobacco companies are just the beginning because we have now opened 
the Pandora's box. We have said defendants should be held liable for 
damage caused by others even if the damage was totally beyond the 
defendant's control.
  It goes against common sense, and that is what has served our Nation 
so well, common sense and individual responsibility. That is what 
America is about. It is not about this kind of nonsensical legislation 
that puts the blame and the burden on people who shouldn't have the 
blame and the burden.
  I had a shotgun next to my bed as a young man, probably 7 or 8 years 
old. I used it. I shot it frequently. I didn't shoot at anybody. I 
didn't take it to school and kill anybody, nor did any of my friends 
who also had shotguns. Why is that? Why is it that suddenly now all 
this is a big issue? Because we are trying to pass the burden of 
responsibility on to somebody else other than ourselves.
  We have a cultural problem in this country of the highest magnitude. 
It isn't about exempting the gun industry from bankruptcy laws. That is 
not going to get it right. Believe me, what is going to get it right is 
when we start exercising responsibility in this country again.
  The Founding Fathers would turn over in their graves if they could 
hear this stuff. I can't imagine what Daniel Webster, who wasn't a 
founder, but he was sitting at the desk that I sit at right over there 
about 150 years ago, I can't imagine what he would think to be on this 
floor and debating, blaming the gun manufacturer for somebody else's 
crime, exempting them from bankruptcy laws. I can't imagine what he 
would think or Washington or Jefferson or Adams or Madison or Hamilton 
or any of the great founders who wrote that Constitution, what they 
would think. In many ways, I am glad they are not here to see it.
  In October of 1999, an Ohio court dismissed a suit against the gun 
industry stating that the suit ``is an improper attempt to have this 
court substitute its judgment for that of the legislature, something 
which this court is neither inclined nor empowered to do.'' That was 
the City of Cincinnati versus Beretta USA Corporation.
  In addition, court decisions in Connecticut and Florida this past 
December ruled that State lawsuits against gun manufacturers have no 
legal basis whatsoever. Yet here we are on the floor of the Senate 
trying to do it. The judges in those cases saw that the actions of 
criminals cannot be controlled by any industry. They were right. So why 
are we here? Because people are trying to make something happen that 
they know the American people don't support. So we try to do it this 
way.
  I am heartened by recent polls which show that an overwhelming 
majority of Americans believe that gun manufacturers should not be 
blamed for crimes committed with guns. Even if you think there are too 
many guns, even if you believe that, you better think very carefully 
before you vote on this as to what might be next. Should we be 
responsible for the actions of our adult children if they commit a 
crime? Where is it going to stop?
  If there is even one single successful judgment against the gun 
industry,

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those who seek to destroy it, and along with it the second amendment, 
will have a ready means to do so. That is what will happen. So we have 
two amendments that propose to violate the constitutional rights of the 
American people, two politically motivated proposals that target 
politically incorrect targets for unfair treatment; dump on them while 
they are down. Let me again remind my colleagues of the oath we all 
took right there at the desk to defend and support the Constitution and 
abide by American standards of fairness and democracy that have served 
our Nation so well. Vote no on these two amendments. No matter how you 
feel about the two issues in question, vote no on these two amendments.

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