[Congressional Record (Bound Edition), Volume 148 (2002), Part 15]
[Senate]
[Page 21003]
[From the U.S. Government Publishing Office, www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  Mr. KYL. Mr. President, I rise today to cosponsor the Protection of 
Lawful Commerce in Arms Act, S. 2268. I feel that this bill is 
necessary in light of the large numbers of lawsuits initiated in recent 
years seeking to impose liability on gun manufacturers and dealers for 
the violent conduct of third-party criminals. At common law, tort 
liability would not lie for harm that was proximately caused by the 
intervening acts of a third party. It was universally understood that 
you could not hold a person responsible for the behavior of another 
person whom he did not control. Applying these long-standing 
principles, the vast majority of courts have thrown out these types of 
gun lawsuits.
  Unfortunately, however, some courts have allowed these suits to go 
forward. Ohio's Supreme Court, for example, recently overruled both 
trial courts and appellate courts when, in a 4-3 vote, it reinstated a 
lawsuit against firearms manufacturers brought by the City of 
Cincinnati. Lower courts in Massachusetts have also allowed such 
lawsuits to go forward.
  This type of politicized litigation affects all firearms 
manufacturers' and dealers' right to conduct lawful commerce. These 
lawsuits thus affect all Americans' second amendment rights, not just 
the rights of those in the jurisdictions that have allowed these suits 
to go forward. For this reason, a Federal solution to this problem is 
appropriate.
  I, therefore, am pleased to cosponsor S. 2268, though I do so with 
one reservation. The bill as introduced in the Senate appears that it 
would not only bar political lawsuits, but would also bar recovery for 
a type of claim that I believe to be legitimate: an action for damages 
that result if a dealer knowingly or negligently sells a gun to a 
criminal. The same concern about barring this type of lawsuit was 
raised during the House of Representatives' consideration of the House 
companion to this bill, one member knew of a case in his district in 
which a dealer was sued for selling a gun to someone who was 
intoxicated. In response, the House Commerce Subcommittee on Commerce, 
Trade, and Consumer Protection added an additional exception to the 
bill's preemption for actions arising from: the supplying of a firearm 
or an ammunition product by a seller for use by another person when the 
seller knows or should know the person to whom the product has been 
supplied is likely to use the product, and in fact does use the 
product, in a manner involving unreasonable risk of injury to himself 
and others.
  I believe that this House amendment is sufficient to allow legitimate 
lawsuits for harm arising from improper gun sales to go forward, while 
still protecting dealers and manufacturers from politicized anti-gun 
litigation. On the understanding that Senate conferees would accede to 
this or an equivalent provision in the House-Senate conference on this 
legislation, I am pleased to cosponsor the Protection of Lawful 
Commerce in Arms Act.

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