[House Report 107-727]
[From the U.S. Government Publishing Office]



107th Congress                                            Rept. 107-727
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================



 
               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

                                _______
                                

October 8, 2002.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2037]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2037) to amend the Act establishing the Department 
of Commerce to protect manufacturers and sellers in the 
firearms and ammunition industry from restrictions on 
interstate or foreign commerce, having considered the same, 
reports favorably thereon with amendments and recommends that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     1
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     4
Hearings.........................................................    27
Committee Consideration..........................................    27
Vote of the Committee............................................    27
Committee Oversight Findings.....................................    29
Performance Goals and Objectives.................................    29
New Budget Authority and Tax Expenditures........................    29
Congressional Budget Office Cost Estimate........................    29
Constitutional Authority Statement...............................    31
Section-by-Section Analysis and Discussion.......................    31
Markup Transcript................................................    32

    The amendments are as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Protection of Lawful Commerce in 
Arms Act''.

SEC. 2. FINDINGS; PURPOSES.

    (a) Findings.--The Congress finds the following:
            (1) Citizens have a right, under the Second Amendment to 
        the United States Constitution, to keep and bear arms.
            (2) Lawsuits have been commenced against manufacturers, 
        distributors, dealers, and importers of nondefective firearms, 
        which seek money damages and other relief for the harm caused 
        by the misuse of firearms by third parties, including 
        criminals.
            (3) The manufacture, importation, possession, sale, and use 
        of firearms and ammunition in the United States is heavily 
        regulated by Federal, State, and local laws. Such Federal laws 
        include the Gun Control Act of 1968, the National Firearms Act, 
        and the Arms Export Control Act.
            (4) Businesses in the United States that are engaged in 
        interstate and foreign commerce through the lawful design, 
        marketing, distribution, manufacture, importation, or sale to 
        the public of firearms or ammunition that have been shipped or 
        transported in interstate or foreign commerce are not, and 
        should not be, liable for the harm caused by those who 
        criminally or unlawfully misuse firearm products or ammunition 
        products.
            (5) The possibility of imposing liability on an entire 
        industry for harm that is the sole responsibility of others is 
        an abuse of the legal system, erodes public confidence our 
        Nation's laws, threatens the diminution of a basic 
        constitutional right, invites the disassembly and 
        destabilization of other industries and economic sectors 
        lawfully competing in America's free enterprise system, and 
        constitutes an unreasonable burden on interstate and foreign 
        commerce.
            (6) The liability actions commenced or contemplated by 
        municipalities and cities are based on theories without 
        foundation in hundreds of years of the common law and American 
        jurisprudence. The possible sustaining of these actions by a 
        maverick judicial officer would expand civil liability in a 
        manner never contemplated by the Framers of the Constitution. 
        The Congress further finds that such an expansion of liability 
        would constitute a deprivation of the rights, privileges, and 
        immunities guaranteed to a citizen of the United States under 
        the Fourteenth Amendment to the United States Constitution.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To prohibit causes of action against manufacturers, 
        distributors, dealers, and importers of firearms or ammunition 
        products for the harm caused by the criminal or unlawful misuse 
        of firearm products or ammunition products by others.
            (2) To preserve a citizen's access to a supply of firearms 
        and ammunition for all lawful purposes, including hunting, 
        self-defense, collecting, and competitive or recreational 
        shooting.
            (3) To guarantee a citizen's rights, privileges, and 
        immunities, as applied to the States, under the Fourteenth 
        Amendment to the United States Constitution, pursuant to 
        section five of that Amendment.
            (4) To prevent the use of such lawsuits to impose 
        unreasonable burdens on interstate and foreign commerce.

SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL LIABILITY ACTIONS IN 
                    FEDERAL OR STATE COURT.

    (a) In General.--A qualified civil liability action may not be 
brought in any Federal or State court.
    (b) Dismissal of Pending Actions.--A qualified civil liability 
action that is pending on the date of the enactment of this Act shall 
be dismissed immediately by the court in which the action was brought.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Engaged in the business.--The term ``engaged in the 
        business'' has the meaning given that term in section 
        921(a)(21) of title 18, United States Code, and, as applied to 
        a seller of ammunition, means a person who devotes, time, 
        attention, and labor to the sale of ammunition as a regular 
        course of trade or business with the principal objective of 
        livelihood and profit through the sale or distribution of 
        ammunition.
            (2) Manufacturer.--The term ``manufacturer'' means, with 
        respect to a qualified product, a person who is engaged in the 
        business of manufacturing the product in interstate or foreign 
        commerce and who is licensed to engage in business as such a 
        manufacturer under chapter 44 of title 18, United States Code.
            (3) Person.--The term ``person'' means any individual, 
        corporation, company, association, firm, partnership, society, 
        joint stock company, or any other entity, including any 
        governmental entity.
            (4) Qualified product.--The term ``qualified product'' 
        means a firearm (as defined in subparagraph (A) or (B) of 
        section 921(a)(3) of title 18, United States Code, including 
        any antique firearm (as defined in section 921(a)(16) of such 
        title)), or ammunition (as defined in section 921(a)(17) of 
        such title), or a component part of a firearm or ammunition, 
        that has been shipped or transported in interstate or foreign 
        commerce.
            (5) Qualified civil liability action.--
                    (A) In general.--The term ``qualified civil 
                liability action'' means a civil action brought by any 
                person against a manufacturer or seller of a qualified 
                product, or a trade association, for damages resulting 
                from the criminal or unlawful misuse of a qualified 
                product by the person or a third party, but shall not 
                include--
                            (i) an action brought against a transferor 
                        convicted under section 924(h) of title 18, 
                        United States Code, or a comparable or 
                        identical State felony law, by a party directly 
                        harmed by the conduct of which the transferee 
                        is so convicted;
                            (ii) an action brought against a seller for 
                        negligent entrustment or negligence per se;
                            (iii) an action where a manufacturer or 
                        seller of a qualified product knowingly and 
                        willfully violated a State or Federal statute 
                        applicable to the sale or marketing of the 
                        product, and the violation was a proximate 
                        cause of the harm for which relief is sought;
                            (iv) an action for breach of contract or 
                        warranty in connection with the purchase of the 
                        product; or
                            (v) an action for physical injuries or 
                        property damage resulting directly from a 
                        defect in design or manufacture of the product, 
                        when used as intended.
                    (B) Negligent entrustment.--In subparagraph 
                (A)(ii), the term ``negligent entrustment'' means the 
                supplying of a qualified product by a seller for use by 
                another person when the seller knows or should know the 
                person to whom the product is supplied is likely to use 
                the product, and in fact does use the product, in a 
                manner involving unreasonable risk of physical injury 
                to the person and others.
            (6) Seller.--The term ``seller'' means, with respect to a 
        qualified product--
                    (A) an importer (as defined in section 921(a)(9) of 
                title 18, United States Code) who is engaged in the 
                business as such an importer in interstate or foreign 
                commerce and who is licensed to engage in business as 
                such an importer under chapter 44 of title 18, United 
                States Code;
                    (B) a dealer (as defined in section 921(a)(11) of 
                title 18, United States) who is engaged in the business 
                as such a dealer in interstate or foreign commerce and 
                who is licensed to engage in business as such a dealer 
                under chapter 44 of title 18, United States Code; or
                    (C) a person engaged in the business of selling 
                ammunition (as defined in section 921(a)(17) of title 
                18, United States Code) in interstate or foreign 
                commerce at the wholesale or retail level, consistent 
                with Federal, State, and local law.
            (7) State.--The term ``State'' includes each of the several 
        States of the United States, the District of Columbia, the 
        Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
        Samoa, and the Commonwealth of the Northern Mariana Islands, 
        and any other territory or possession of the United States, and 
        any political subdivision of any such place.
            (8) Trade association.--The term ``trade association'' 
        means any association or business organization (whether or not 
        incorporated under Federal or State law) that is not operated 
        for profit, and 2 or more members of which are manufacturers or 
        sellers of a qualified product.

    Amend the title so as to read:

      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.

                          Purpose and Summary

    H.R. 2037, the ``Protection of Lawful Commerce in Arms 
Act,'' provides that a ``qualified civil liability action'' 
cannot be brought in any State or Federal court, and that such 
actions that are pending on the date of enactment shall be 
dismissed immediately by the court in which the action was 
brought. ``Qualified civil liability action'' is defined in 
Sec. 4(5)(A) as:

        a civil action brought by any person \1\ against a 
        manufacturer or seller of a qualified product, or a 
        trade association, for damages resulting from the 
        criminal or unlawful misuse of a qualified product by 
        the person or a third party . . .''
---------------------------------------------------------------------------
    \1\ ``Person'' is defined in Sec. 4(3) as including ``any 
individual, corporation, company, association, firm, partnership, 
society, joint stock company, or any other entity, including any 
governmental entity.''

---------------------------------------------------------------------------
        This term, however, does not include:

        (i) an action brought against a transferor convicted 
        under section 924(h) of title 18, United States 
        Code,\2\ or a comparable or identical State felony law, 
        by a party directly harmed by the conduct of which the 
        transferee is so convicted; (ii) an action brought 
        against a seller for negligent entrustment \3\ or 
        negligence per se; \4\ (iii) an action where a 
        manufacturer or seller of a qualified product knowingly 
        and willfully violated a State or Federal statute 
        applicable to the sale or marketing of the product, and 
        the violation was a proximate cause of the harm for 
        which relief is sought; (iv) an action for breach of 
        contract or warranty in connection with the purchase of 
        the product; or (v) an action for physical injuries or 
        property damage resulting directly from a defect in 
        design or manufacture of the product, when used as 
        intended.
---------------------------------------------------------------------------
    \2\ 18 U.S.C. 924(h) provides that it is a criminal offense to 
``knowingly transfer[] a firearm, knowing that such firearm will be 
used to commit a crime of violence . . . or drug trafficking crime . . 
.''.
    \3\ ``Negligent entrustment'' is defined in Sec. 4(5)(B) of the 
bill as ``the supplying of a qualified product by a seller for use by 
another person when the seller knows or should know the person to whom 
the product is supplied is likely to use the product, and in fact does 
use the product, in a manner involving unreasonable risk of physical 
injury to the person and others.''
    \4\ Negligence per se is negligence established as a matter of law. 
Negligence per se usually arises from a statutory violation, and it is 
a question for the court, not the jury. See Black's Law Dictionary (7th 
ed. 1999).

    Manufacturers and sellers of qualified products are defined 
as those who federally licensed to manufacture, import, or deal 
in firearms and ammunition, as defined by Federal law.

                Background and Need for the Legislation

    Congress, by passing H.R. 2037, can protect the separation 
of powers and uphold democratic procedures by exercising its 
authority under the Commerce Clause to prevent state courts 
from bankrupting the national firearms industry and setting 
precedents that will further undermine American industries and 
the U.S. economy.

 THE COMMON-SENSE TRADITIONAL RULE IS THAT MANUFACTURERS SHOULD NOT BE 
  HELD LIABLE FOR THE CRIMINAL OR WILLFULLY TORTIOUS MISUSE OF THEIR 
                                PRODUCTS

    Historically, American courts have not held firearms 
manufacturers liable for the injuries caused by the negligent 
or criminal action of third parties.\5\ Individual plaintiffs 
attempting to establish firearm manufacturer liability have 
advanced various theories and the courts have overwhelmingly 
rejected them. For example, in First Community Trust Co. v. 
Colt's Manufacturing Co., the plaintiffs advanced a negligence 
theory of liability based upon Colt's ``merchandising and 
promoting cheap handguns,'' failure to establish a ``safe-
sales'' policy, and ``fail[ure] to properly warn retailers 
regarding `probable misusers' of handguns.'' \6\ Relying upon 
earlier cases from the same state,\7\ the Eighth Circuit ruled 
that ``handgun manufacturers owe no duty to victims of illegal 
shootings.'' \8\ In other cases, individual plaintiffs have 
attempted but failed to recover under theories including 
defective design,\9\ failure to warn,\10\ public nuisance,\11\ 
negligence,\12\ strict product liability,\13\ and abnormally 
dangerous or ultra-hazardous activity liability.\14\ As one 
court observed of slingshots, ``ever since David slew Goliath, 
young and old alike have known that slingshots can be dangerous 
and deadly.'' \15\ The same could be said for firearms.
---------------------------------------------------------------------------
    \5\ See First Commercial Trust Co. v. Colt's Mfg. Co., 77 F.3d 1081 
(8th Cir. 1996); Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988); 
Bubalo v. Navegar, Inc., No. 96 C 3664, 1998 U.S. Dist. LEXIS 3598 
(N.D. Ill. Mar. 16, 1998); Rodriguez v. Glock, Inc., 28 F. Supp. 2d 
1064 (N.D. Ill. 1998); Caveny v. Raven Arms Co., 665 F. Supp. 530, 
(S.D. Ohio 1987), aff'd, 849 F.2d 608 (6th Cir. 1988); Delahanty v. 
Hinckley, 686 F. Supp. 920 (D.D.C. 1986), aff'd, 900 F.2d 368 (D.C. 
Cir. 1990); Patterson v. Gesellschaft, 608 F. Supp. 1206 (N.D. Tex. 
1985); First Commercial Trust Co. v. Lorcin Eng'g, Inc., 900 S.W.2d 202 
(Ark. 1995); Merrill v. Navegar, Inc., No. S083466, 2001 Cal. LEXIS 
4945 (Aug. 6, 2001); Coulson v. DeAngelo, 493 So. 2d 98 (Fla. Dist. Ct. 
App. 1986); Addison v. Williams, 546 So. 2d 220 (La. Ct. App. 1989); 
King v. R.G. Indus., Inc., 451 N.W.2d 874 (Mich. Ct. App. 1990); Knott 
v. Liberty Jewelry & Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988).
    \6\ Colt's Mfg., 77 F.3d at 1083 (relying on Lorcin Eng'g, 900 
S.W.2d at 205).
    \7\ See Lorcin Eng'g, 900 S.W.2d at 202.
    \8\ Colt's Mfg., 77 F.3d at 1083.
    \9\ See Keene v. Sturm, Ruger & Co., 121 F. Supp. 2d 1063 (E.D. 
Tex. 2000); Patterson, 608 F. Supp. at 1206; see also Prentis v. Yale 
Mfg. Co., 365 N.W.2d 176, 183, 189 (Mich. 1984) (adopting a pure 
negligence risk-utility test to determine liability in defective design 
cases; noting that the other method of determining defective design 
focused on consumer expectations, which the court deemed too subjective 
a test).
    \10\ See Keene, 121 F. Supp. at 1069-70 (holding that handgun 
manufacturers have no duty to warn of the obvious dangers of handguns); 
Perkins v. F.I.E. Corp., 762 F.2d 1250, 1270 (5th Cir. 1985), reh'g 
denied, 768 F.2d 1350 (5th Cir. 1985) (warning on handguns not likely 
to change buying patterns or reduce violence); Martin v. Harrington and 
Richardson Inc., 743 F.2d 1200, 1202 (7th Cir. 1984) (no strict 
liability when non-defective product presents danger recognizable to 
average consumer); Bookout v. Victor Comptometer Corp., 576 P.2d 197 
(Colo. Ct. App. 1978)(``potential for danger inherent in a BB gun is 
readily apparent and a warning for the obvious is not a requirement of 
the doctrine of products liability'').
    \11\ See Bubalo v. Navegar, Inc., No. 96 C 3664, 1998 U.S. Dist. 
LEXIS 3598 (N.D. Ill. Mar. 16, 1998). See also Restatement (Second) of 
Torts Sec. 821B (1979) (``(1) A public nuisance is an unreasonable 
interference with a right common to the general public. (2) 
Circumstances that may sustain a holding that an interference with a 
public right is unreasonable include the following: (a) Whether the 
conduct involves a significant interference with the public health, the 
public safety, the public peace, the public comfort or the public 
convenience, or (b) whether the conduct is proscribed by a statute, 
ordinance or administrative regulation, or (c) whether the conduct is 
of a continuing nature or has produced a permanent or long-lasting 
effect, and as the actor knows or has reason to know, has a significant 
effect upon the public right.'' Id.
    \12\ See Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064 (N.D. Ill. 
1998); Merrill v. Navegar, Inc., No. S083466, 2001 Cal. LEXIS 4945 
(Aug. 6, 2001); see also Restatement (Second) of Torts Sec. 282 (1965) 
(``Negligence is conduct which falls below the standard established by 
law for the protection of others against unreasonable risk of harm; 
(i)t does not include conduct recklessly disregardful of an interest of 
others.'').
    \13\ See Merrill, 2001 Cal. LEXIS 4945; Halliday v. Sturm, Ruger & 
Co., 770 A.2d 1072 (Md. Ct. Spec. App. 2001); Richman v. Charter Arms 
Corp., 571 F. Supp. 192 (E.D. La. 1983), rev'd on other grounds sub 
nom. Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985). See also 
Restatement (Second) of Torts Sec. 519 (1977) (``(1) One who carries on 
an abnormally dangerous activity is subject to liability for harm to 
the person; land or chattels of another resulting from the activity, 
although he has exercised the utmost care to prevent the harm. (2) This 
strict liability is limited to the kind of harm, the possibility of 
which makes the activity abnormally dangerous.'' Id.
    \14\ See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988). See 
also Restatement (Second) of Torts Sec. 520 (1977). (``In determining 
whether an activity is abnormally dangerous, the following factors are 
to be considered: (a) existence of a high degree of risk of some harm 
to the person, land or chattels of others; (b) likelihood that the harm 
that results from it will be great; (c) inability to eliminate the risk 
by the exercise of reasonable care; (d) extent to which the activity is 
not a matter of common usage; (e) inappropriateness of the activity to 
the place where it is carried on; and (f) extent to which its value to 
the community is outweighed by its dangerous attributes.''). This 
section was changed by substituting abnormally dangerous activity for 
ultra-hazardous activity. Id.
    \15\ Bojorquez v. House of Toys Inc., 62 Cal. App. 3d 930, 934 
(Cal. Ct. App. 4th Dist. 1976).
---------------------------------------------------------------------------
    In states that permit a negligence cause of action in a 
product liability suit, plaintiffs have begun to claim that the 
manufacturer breached its duty of reasonable care by marketing 
products that carry a risk of criminal misuse. In the case of 
firearms, courts have, for the most part, refused to impose 
such a duty to the victim because the manufacture and 
distribution of firearms is not per se unlawful.\16\ It has 
also been held that the open and obvious dangers associated 
with the use of guns obviates any duty owed by the 
manufacturer. A gun, by its very nature, must be dangerous and 
have the capacity to discharge a bullet with deadly force,\17\ 
and courts have generally held that a gun manufacturer is not 
an insurer that the product is completely safe,\18\ nor is it 
under any duty to design a product incapable of causing 
injury.\19\ A gun manufacturer who produces and markets a 
weapon that performs as intended and designed is not 
liable,\20\ since members of the general public can presumably 
recognize the dangers involved in using firearms and assume the 
responsibility for their own actions.\21\ A victim is not 
entitled to damages simply because he or she was injured 
through the use of the manufacturer's product.\22\
---------------------------------------------------------------------------
    \16\ See Armijo v. Ex Cam Inc., 843 F.2d 406 (10th Cir. 1988) 
(affirming holding of no duty not to sell firearms simply because of 
potential for criminal misuse and stating ``mere fact that a product is 
capable of being misused to criminal ends does not render the product 
defective''); Caveny v. Raven Arms Co., 665 F. Supp. 530, 533 (S.D. 
Ohio 1987) (``difficult to conceive of a method of distribution by 
which handgun manufacturers could avoid the sale of its product to all 
potential misusers'').
    \17\ See Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. 
Tex. 1985) (applying Texas law).
    \18\ See Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d 
Dist. 1986); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D. 
Tex. 1985) (applying Texas law).
    \19\ See Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d 
Dist. 1986); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1275 (5th Cir. 
1985), reh'g denied, 768 F.2d 1350 (5th Cir. 1985) (fact that handgun 
was small and, therefore, concealable is not something that is wrong 
with the product that would trigger liability, since the product 
functioned precisely as it was designed to); McCarthy v. Sturm, Ruger & 
Co., Inc., 916 F. Supp. at 371 (risk associated with hollow-point 
bullets arises from the function of the product, not any defect; thus, 
risk/utility analysis is inappropriate); Caveny v. Raven Arms Co., 665 
F. Supp. 530, 532 (S.D. Ohio 1987) (risk/utility standard not 
applicable when product functioned properly).
    \20\ See California. Moore v. R.G. Industries, Inc., 789 F.2d 1326 
(9th Cir. 1986) (applying California law); Florida. Trespalacios v. 
Valor Corp. of Florida, 486 So. 2d 649 (Fla. Dist. Ct. App. 3d Dist. 
1986); Georgia. Rhodes v. R.G. Industries, Inc., 325 S.E.2d 465 (1984); 
Massachusetts. Bolduc v. Colt's Mfg. Co., Inc., 968 F. Supp. 16 
(D.Mass. 1997) (applying Massachusetts law; the decedent had 
deliberately pointed the pistol at his own head and pulled the 
trigger).
    \21\ See Rhodes v. R.G. Industries, Inc., 325 S.E.2d 465 (1984); 
Taylor v. Gerry's Ridgewood, Inc., 490 N.E.2d 987 (3d Dist. 1986).
    \22\ See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 
(7th Cir. 1984) (applying Illinois law).
---------------------------------------------------------------------------
    The sale of a firearm merely furnishes the condition for a 
crime and, as a matter of law, there can be no finding of 
proximate cause in an action brought on behalf of a victim 
against the seller of the firearm used in the crime.\23\ In 
addition, any criminal misuse of a firearm that is not 
reasonably foreseeable is an intervening,\24\ or an independent 
superseding cause,\25\ which the manufacturer of a nondefective 
weapon has no duty to anticipate\26\ or prevent.\27\ Courts 
have also held that the risk of intentional criminal misuse of 
``Saturday Night Specials'' generally characterized by short 
barrels, light weight, easy concealability, low cost, use of 
cheap quality materials, poor manufacture, inaccuracy and 
unreliability,\28\ does not give rise to liability,\29\ as this 
risk is not great enough to outweigh any potential societal 
benefit of the product.\30\
---------------------------------------------------------------------------
    \23\ See Quiroz v. Leslie Edelman of N.Y., Inc., 638 N.Y.S.2d 154 
(2d Dep't 1996).
    \24\ See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 
(7th Cir. 1984) (applying Illinois law); Eichstedt v. Lakefield Arms 
Ltd., 849 F. Supp. 1287 (E.D. Wis. 1994) (applying Wisconsin law).
    \25\ See Rodriguez v. Glock, Inc., 28 F. Supp. 2d 1064 (N.D. Ill. 
1998) (applying Illinois law); Davis v. McCourt, 226 F.3d 506 (6th Cir. 
2000) (applying Michigan law).
    \26\ See Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 
1206 (E.D. Ky. 1973) (applying Kentucky law).
    \27\ See Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649 
(Fla. Dist. Ct. App. 3d Dist. 1986).
    \28\ See Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (1985).
    \29\ See King v. R.G. Industries, Inc., 451 N.W.2d 874 (1990).
    \30\ See Moore v. R.G. Industries, Inc., 789 F.2d 1326 (9th Cir. 
1986) (applying California law); Armijo v. Ex Cam, Inc., 656 F. Supp. 
771 (D.N.M. 1987), decision aff'd on other grounds, 843 F.2d 406 (10th 
Cir. 1988) (applying New Mexico law).
---------------------------------------------------------------------------
    Handgun manufacturers historically have been found, and 
generally continue to be found, to have no duty to third-party 
victims of firearm misuse,\31\ such as criminal or accidental 
misuse.\32\ The court in City of Philadelphia v. Beretta held 
that the question of whether the handgun manufacturers were the 
appropriate defendants, as well as their remoteness from the 
harm, weighed against the imposition of a duty.\33\ In First 
Commercial Trust Co. v. Lorcin Engineering, Inc., the Arkansas 
Supreme Court held that handgun manufacturers ``owed no legal 
duty'' to shooting victims.\34\ In Armijo v. Ex Cam, Inc., a 
case arising out of the criminal misuse of a handgun, the Tenth 
Circuit held that because the state legislature had not made 
distribution of handguns illegal, the manufacturer had no 
``duty'' to refrain from selling its product.\35\ In Leslie v. 
United States, the United States District Court for the 
District of New Jersey held, in a lawsuit against an ammunition 
manufacturer, that handgun and ammunition manufacturers ``owe 
no duty to . . . prevent their misuse by criminals.'' \36\ 
Furthermore, a Louisiana court also held that gun manufacturers 
have no duty to abstain from the legal manufacturing and 
selling of guns.\37\ Hamilton v. Accu-Tek is the only case 
where a jury has found the manufacturers liable for 
negligence,\38\ and the New York Court of Appeals, in 
responding to a certified question from the Second Circuit has 
concluded that handgun manufacturers do not owe a duty of 
reasonable care in the marketing and distribution of 
handguns.\39\ As these cases demonstrate, the absence of a 
special relationship between criminal third parties and 
manufacturers means that negligence claims should be dismissed. 
Gun manufacturers have no duty to control the conduct of third 
parties.\40\ The judge in Ganim v. Smith & Wesson, a case 
brought by the City of Bridgeport against the firearms 
industry, explained that ``calculating the impact of gun 
marketing on teen suicide and diminution of property values in 
Bridgeport would create insurmountable difficulties in damage 
calculation.'' \41\ The judge asserted that Bridgeport ``cannot 
seriously maintain that reasonable certainty in calculating 
their damage claims is within the realm of possibility.'' \42\
---------------------------------------------------------------------------
    \31\ See Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 
1988); Caveny v. Raven Arms Co., 665 F.Supp. 530, 536 (S.D. Ohio 1987); 
First Commercial Trust v. Lorcin Eng'g, Inc., 900 S.W.2d 202, 205 (Ark. 
1995); Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 1989).
    \32\ Randy R. Koenders, Annotation, Products Liability: Sufficiency 
of Evidence to Support Product Misuse Defense in Actions Concerning 
Weapons and Ammunition, 59 A.L.R. 4th 102 (2000).
    \33\ See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 
2d 882, 902 (E.D. Pa. 2000).
    \34\ Lorcin, 900 S.W.2d at 203.
    \35\ Armijo, 843 F.2d at 407.
    \36\ Leslie v. United States, 986 F. Supp. 900, 911 (D.N.J. 1997).
    \37\ See Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 
1989).
    \38\ See Hamilton v. Accu-Tek, 62 F. Supp. 2d 802, 811 (E.D.N.Y. 
1999).
    \39\ See Hamilton v. Beretta U.S.A. Corp., 96 N.Y. 2d 222, 230-31 
(2001), answering certified questions Hamilton v. Accu-Tek, 62 F. Supp. 
2d 802 (E.D.N.Y. 1999); Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 
43 (2d Cir. 2000), certifying questions to state court Hamilton v. 
Accu-Tek, 62 F. Supp. 2d 802 (E.D.N.Y. 1999).
    \40\ See City of Cincinnati v. Beretta U.S.A. Corp., No. C-990729, 
2000 Ohio App. LEXIS 3601, at *15 (Ohio Ct. App. Aug. 11, 2000); see 
also Order on Pending Motion to Dismiss at 6, Penelas v. Arms Tech., 
Inc., 778 So. 2d 1042 (Fla. Dist. Ct. App. 2001) (No. 99-01941 CA06) 
(holding that under Florida law, no duty is imposed on handgun 
manufacturers to protect others).
    \41\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 
Conn. Super. LEXIS 3330 at *29 (Conn. Super. Ct. Dec. 10, 1999) 
(dismissed for lack of subject matter jurisdiction).
    \42\ Id. at *30.
---------------------------------------------------------------------------
    Every test for product defect, from ancient negligence 
theory to the most recent formulation contained in the 
Restatement (Third) of Torts: Products Liability, rests upon a 
moral foundation which presupposes that a product may not be 
defined as defective unless there is something ``wrong'' with 
it. No less a scholar than Oliver Wendell Holmes as early as 
1894 posed the question of firearms manufacturers' liability: 
``[I]f notice so determined is the general ground [upon which 
liability may rest], why is not a man who sells fire-arms 
answerable for assaults committed with pistols bought of him, 
since he must be taken to know the probability that, sooner or 
later, some one will buy a pistol of him for some unlawful end? 
. . . The principle seems to be pretty well established, in 
this country at least, that every one has a right to rely upon 
his fellow-men acting lawfully . . .'' \43\ Thus, Holmes 
rejected the notion of gun sellers' liability because of the 
intervening criminal act of another; the ``wrong'' that he saw 
was that of the assailant, not the gun dealer.\44\ As the 
Supreme Court stated, quoting James Madison, in New York Times 
Co. v. Sullivan, ``As Madison said, `Some degree of abuse is 
inseparable from the proper use of every thing . . .' '' \45\
---------------------------------------------------------------------------
    \43\ Oliver Wendell Holmes, ``Privilege, Malice, and Intent,'' 1894 
Harv.L. Rev. 1, 10 (1894).
    \44\ See id. Indeed, very few offenders obtain their guns from 
legitimate gun dealers. According to the 1997 Survey of State Prison 
Inmates, for 80% of those possessing a gun, the source of the gun was 
family, friends, a street buy, or an illegal source. See Caroline Wolf 
Harlow, Bureau of Justice Statistics Special Report. ``Firearms Use by 
Offenders'' (November 2001, NCJ 189369) at 1. See also U.S. Department 
of Justice, Bureau of Justice Statistics, Firearms and Crime 
Statistics, http://www.ojp.usdoj.gov/bjs/guns.htm.
    \45\ 376 U.S. 254, 271 (1964). Essentially the same point was made 
by the Seventh Circuit, in a frequently-cited patent law case. See 
Fuller v. Berger, 120 F. 274 (7th Cir.1903), cert. denied 193 U.S. 668 
(citing Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 
405, 426 (1908); Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 
U.S. 24, 34 (1923)). Discussing ``utility,'' for patent law purposes, 
the Court explained how the occasional misuse of a product does not 
negate its utility. To begin with, the court noted that the existence 
of a patent grant was ``prima facie proof of utility.'' Fuller, 120 F. 
at 275. The court then asked whether evidence that the patented device 
``has been used for pernicious purposes'' could prove that the device 
``is incapable of serving any beneficial end?'' Id. To answer the 
question, the court adopted a conclusion from a leading patent 
treatise, which the court then quoted at length:

      An important question, relevant to utility in this aspect, 
      may hereafter arise and call for judicial decision. It is 
      perhaps true, for example, that the invention of the Colt's 
      revolver was injurious to the morals, and injurious to the 
      health, and injurious to the good order of society. That 
      instrument of death may have been injurious to morals, in 
      tending to tempt and to promote the gratification of 
      private revenge. It may have been injurious to health, in 
      that it is very liable to accidental discharge, and thereby 
      to cause wounds, and even homicide. It may also have been 
      injurious to good order, especially in the newer parts of 
      the country, because it facilitates and increases private 
      warfare among frontiersman. On the other hand, the 
      revolver, by furnishing a ready means of self-defense, may 
      sometimes have promoted morals and health and good order. 
      By what test, therefore, is utility to be determined in 
      such cases? Is it to be done by balancing the good 
      functions with the evil functions? Or is everything useful 
      within the meaning of the law, if it is used (or is 
      designed and adopted to be used) to accomplish a good 
      result, though in fact it is oftener used (or is as well or 
      even better adapted to be used) to accomplish a bad one? Or 
      is the utility negatived by the mere fact that the thing in 
      question is sometimes injurious to morals, or to health, or 
      to good order? The third hypothesis cannot stand, because 
      it would be fatal to patents for steam engines, dynamos, 
      electric railroads, and indeed many of the noblest 
      inventions of the nineteenth century. The first hypothesis 
      cannot stand, because if it could, it would make the 
      validity of patents to depend on a question of fact to 
      which it would often be impossible to give a reliable 
      answer. The second hypothesis is the only one which is 
      consistent with the reason of the case, and with the 
      practical construction which the courts have given to the 
---------------------------------------------------------------------------
      statutory requirement of utility.

      Fuller, 120 F. at 275-76 (quoting Walker Section 82, 3d 
      ed.).
    Finally, the remoteness doctrine has been widely accepted 
by the courts as a bar to claims brought by public entities, 
and courts have dismissed complaints by public entities based 
on this threshold consideration. For example, in United States 
v. Standard Oil Co.,\46\ the United States government sought to 
recover the cost of hospitalization and support of a soldier 
injured by Standard Oil's negligence. The Court determined that 
the government was not entitled to recover at common law 
because its injury was remote and indirect.\47\ The Court 
further noted that while Congress could enact a statute 
permitting the government to recover for remote injuries, it 
had chosen not to do so despite the fact that it was aware that 
``the Government constantly sustains losses through the 
tortious or even criminal conduct of persons interfering with 
Federal funds, property and relationships.'' \48\ Similarly, 
courts have dismissed city and county complaints seeking 
recovery at common law for injuries to remote third 
parties.\49\
---------------------------------------------------------------------------
    \46\ 332 U.S. 301 (1947).
    \47\ See id. at 304.
    \48\ Id. at 315.
    \49\ See City of Birmingham v. American Tobacco Co., 10 F. Supp.2d 
1257, 1259-62 (N.D. Ala. 1998) (holding that City has no right to 
recover the costs of medical care for smoking-related illnesses from 
third-party tortfeasors); County of Los Angeles v. R.J. Reynolds 
Tobacco Co., No. 707651 (Cal. Super. Dec. 23, 1997) (County's health 
care expenses for treatment of smoking-related illnesses was ``purely 
derivative'' of injuries to smokers).
---------------------------------------------------------------------------

  VARIOUS PUBLIC ENTITIES HAVE RECENTLY PRESSED COURTS TO REJECT THE 
COMMON-SENSE MAJORITY RULE, TO BREACH THE SEPARATION OF POWERS, AND TO 
                  HURDLE SOCIETY DOWN A SLIPPERY SLOPE

    Recent litigation against the tobacco industry has 
encouraged public entities to bring suit against the firearms 
industry.\50\ Such lawsuits are based on novel claims that 
invite courts to dramatically break from bedrock principles of 
tort law and expose firearm manufacturers to unprecedented and 
unlimited liability exposure. The following are among the 
municipalities that have filed suit: Atlanta, Boston, 
Bridgeport, City of Camden, County of Camden, Chicago, 
Cincinnati, Cleveland, Detroit, Wayne County, Michigan, Gary, 
Indiana, City of Los Angeles, County of Los Angeles, Miami-Dade 
County, Newark, New Orleans, Philadelphia, San Francisco, St. 
Louis, and Wilmington.\51\ However, gun manufacturers do not 
have the financial capacity of the cigarette companies whose 
sales average $45 billion annually.\52\ In contrast, the gun 
industry grosses only $1.5 billion a year.\53\ It has been 
estimated that tobacco companies spend approximately $600 
million a year defending against suits brought by the 
states.\54\ Gun companies are incapable of financing a similar 
defense.\55\ If the manufacturers are forced into bankruptcy, 
potential plaintiffs asserting traditional claims concerning a 
product with a manufacturing defect will have no recourse and 
will be unable to recover more than pennies on the dollar in 
Federal bankruptcy court.\56\ Further, firearms have a 
significant impact on the economy in the United States. More 
than twenty million Americans participate in various shooting 
sports each year, accounting for more than $30 billion in 
economic activity as well as 986,000 jobs.\57\ Because the gun 
industry has very narrow profit margins, it is in danger of 
being overwhelmed by the cost of defending itself against these 
suits.\58\
---------------------------------------------------------------------------
    \50\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 
Conn. Super. LEXIS 3330 (Conn. Super. Ct. Dec. 10, 1999). The judge in 
the lawsuit brought by the City of Bridgeport, Connecticut, observed 
that the cities ``have envisioned . . . the dawning of a new age of 
litigation during which the gun industry, liquor industry, and 
purveyors of `junk' food would follow the tobacco industry in 
reimbursing government expenditures . . .'' Id. at *14.
    \51\ Complaint, City of Atlanta v. Smith & Wesson Corp., 543 S.E.2d 
16 (Ga. 2001) (No. 99VS0149217J); Complaint, City of Boston v. Smith & 
Wesson Corp., 12 Mass. L. Rptr. 225 (Mass. Super. Ct. 2000) (No. 1999-
02590); Complaint, Ganim v. Smith & Wesson Corp., No. X06 CV 
990153198S, 1999 Conn. Super. LEXIS 333 (Conn. Super. Ct. 1999); 
Complaint, City of Camden v. Beretta U.S.A. Corp., No. L-451099 (N.J. 
Super. Ct. filed June 21, 1999); Complaint, Camden County Bd. of Chosen 
Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245 (D.N.J. 2000) 
(No. 99 CV 2518); Complaint, City of Chicago v. Beretta U.S.A. Corp., 
No. 98 CH 15596 (Ill. Cir. Ct. filed Apr. 7, 1999); Complaint, City of 
Cincinnati v. Beretta U.S.A. Corp., No. C-990729, 2000 Ohio App. LEXIS 
3601 (Ohio Ct. App. Aug. 11, 2000); Complaint, White v. Smith & Wesson, 
97 F. Supp. 2d 816 (N.D. Ohio 2000) (No. 99 CV 1134); Complaint, Archer 
v. Arms Tech., Inc., 72 F. Supp. 2d 784 (E.D. Mich. 1999) (No.99-912658 
NZ); Complaint, McNamara v. Arms Tech., Inc., 71 F. Supp. 2d 720 (E.D. 
Mich. 1999) (No. 99 912 662); Complaint, City of Gary v. Smith & Wesson 
Corp., No. 45D05-005-CT-243 (formerly No. 4502-9908-CT-0355) (Ind. 
Super. Ct. filed Aug. 27, 1999); Complaint, California v. Arcadia Mach. 
& Tool, Inc., No. BC210894 (Cal. Super. Ct. filed May 25, 1999) 
(including plaintiffs City of Los Angeles, Compton, Inglewood, and West 
Hollywood); Complaint, California v. Arcadia Mach. & Tool, Inc., No. 
BC214794 (Cal. Super. Ct. filed Aug. 6, 1999); Complaint, Penelas v. 
Arms Tech., Inc., 778 So. 2d 1042 (Fla. Dist. Ct. App. 2001) (No. 99-
01941 CA-06); Complaint, Sharpe v. Arcadia Mach. & Tool, Inc., No. ESX-
L-6059-99 (N.J. Super. Ct. filed June 9, 1999); Complaint, Morial v. 
Smith & Wesson Corp., 785 So. 2d 1 (La. 2001) (No. 98-18578 Div. M); 
Complaint, City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 
2d 882 (E.D. Pa. 2000) (2000-CV-2463); Complaint, California v. Arcadia 
Mach. & Tool, Inc., No. 303753 (Cal. Super. Ct. filed May 25, 1999) 
(including plaintiffs San Francisco, Berkeley, Sacramento, San Mateo 
County, Oakland, East Palo Alto, County of Alameda); Complaint, City of 
St. Louis v. Cernicek, No. CV-992-01209 (Mo. Cir. Ct. filed Apr. 30, 
1999); Complaint, Sills v. Smith & Wesson Corp., No. 99C-09-283-FSS, 
2000 Del. Super. LEXIS 444 (Del. Super. Ct. Dec. 1, 2000). The Georgia 
legislature, in response to Atlanta's lawsuit, became the first state 
to pass a statute preempting handgun manufacturer liability lawsuits by 
cities. See Ga. Code Ann. Sec. 16-11-184 (2000). At least seventeen 
states have since followed Georgia's lead with statutes to prohibit 
municipalities from suing handgun manufactures. Those states that have 
passed municipal lawsuit bans are: Arizona, Arkansas, Colorado, 
Kentucky, Louisiana, Maine, Michigan, Montana, Nevada, Oklahoma, 
Pennsylvania, Tennessee, Texas, Utah, and Virginia. See Ariz. Rev. 
Stat. Sec. 12-714 (2000); Ark. Code Ann. Sec. 14-16-504(b)(2) (Michie 
Supp. 1999); Colo. Rev. Stat. Sec. Sec. 13-21-501 to-505 (2000); Ga. 
Code Ann. Sec. 16-11-184 (2000); 2000 Ky. Acts 213; La. Rev. Stat. Ann. 
Sec. 40:1799 (West 2000); Me. Rev. Stat. Ann. tit. 30-A, Sec. 2005 
(West 1999); Mich. Comp. Laws Sec. 600.294 (2000); Mont. Code Ann. 
Sec. 7-1-115 (1999); Nev. Rev. Stat. Sec. 12.107 (2000); Okla. Stat. 
tit. 21 Sec. 1289.24a (1999); Tenn. Code Ann. Sec. 39-17-1314 (1999); 
Tex. Civ. Prac. & Rem. Code S128.001 (2000); Utah Code Ann. Sec. 78-27-
64 (2000); Va. Code Ann. Sec. 15.2-915.1 (Michie 2000). In addition, 
the states of Alaska and South Dakota have exempted gun manufacturers 
from all lawsuits. Alaska Stat. Sec. 09.65.155 (Michie 2000); S.D. 
Codified Laws Sec. 21-58-1 (Michie 2000). The South Dakota statute 
``finds that the unlawful use of firearms, rather than their lawful 
manufacture, distribution, or sale, is the proximate cause of any 
injury arising from their unlawful use.'' S.D. Codified Laws Sec. 21-
58-1 (Michie 2000).
    \52\ See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits, 
The New York Times (March 21, 1999) at A32.
    \53\ See William C. Symonds et al., ``Under Fire,'' Business Week 
(August 16, 1999) at 63.
    \54\ See Fox Butterfield, ``Lawsuits Lead Gun Maker to File for 
Bankruptcy,'' The New York Times (June 24, 1999) at A14.
    \55\ Id.
    \56\ Id.
    \57\ See SAAMI: Sporting Arms and Ammunition Manufacturers' 
Institute, Inc., Market Size and Economic Impact  (relying on a compilation of data 
provided by the U.S. Fish and Wildlife Agencies, the National Shooting 
Sports Foundation and The National Sporting Goods Association). SAAMI 
is a firearms trade association that was founded in 1926 and 
participates in establishing industry standards. See id.
    \58\ See Bill Sammon, ``Gun Makers Halt Settlement Talks with 
Cities; Blame White House's `Politically Motivated' Intervention,'' The 
Washington Times (January 20, 2000), at A1. The Clinton 
Administration's filing of a similar lawsuit spurred Smith & Wesson to 
settle the case with eighteen of those cities. See ``Philadelphia Joins 
Cities That Dropped Smith & Wesson Suits,'' The Wall Street Journal 
(June 5, 2000), at B18.
---------------------------------------------------------------------------
    One industry that was forced to the brink of extinction by 
excessive liability awards and virtually unlimited retroactive 
liability is the general aviation industry.\59\ The United 
States had developed a leading position in general aviation. 
However, during the 1980's and early 1990's, the American 
general aviation industry deteriorated rapidly.\60\ General 
aviation aircraft production plummeted between 1978 and 1991 
from 18,000 planes to less than 900.\61\ The manufacture of 
single engine piston aircraft fell to only 555 by 1993.\62\ 
Only when Congress passed Federal tort statute of repose reform 
directed at saving the aviation industry was the industry 
rescued from the effect of excessive retroactive liability.\63\
---------------------------------------------------------------------------
    \59\ See generally Patrick J. Shea, Solving America's General 
Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform, 
80 Cornell L. Rev. 747 (1995).
    \60\ Patrick J. Shea, ``Solving America's General Aviation Crisis: 
The Advantages of Federal Preemption Over Tort Reform,'' 80 Cornell L. 
Rev. 747 (1995) at 748.
    \61\ See id.
    \62\ See id.
    \63\ See 49 U.S.C. Sec. Sec. 40101-40120.
---------------------------------------------------------------------------
    The various public entities that have brought suit against 
the gun industry in recent years have raised novel claims that 
seek reimbursement of government expenses--including costs for 
police protection, emergency and medical services, and pension 
benefits--associated with gun-related crimes. These claims are 
based on extremely tenuous claims of causality in which gun and 
ammunition manufacturers are many steps removed from the harm 
alleged: the manufacturers produce the firearms; they sell them 
to federally licensed distributors; the distributors sell them 
to federally licensed dealers; some of the firearms are 
diverted by third parties into an illegal gun market; these 
firearms are obtained by people who are not licensed to have 
them; the firearms are then used in criminal acts that do harm; 
and the city or county must spend resources combating or 
responding to those criminal and unlawful acts.
    Of the negligence actions against firearms manufacturers by 
municipalities nationwide, approximately half have been allowed 
to proceed. They include suits by Boston; \64\ Cleveland; 
Detroit; Newark, New Jersey; Wilmington, Delaware; and a 
consortium of California cities including Los Angeles, San 
Francisco, Sacramento and Oakland. Among the dismissed cases, 
some of which remain active on appeal, are those by the state 
of New York; New Orleans; Bridgeport, Connecticut; Gary, 
Indiana; Miami; and Camden County, New Jersey. The suit in 
Cincinnati, while dismissed by lower courts, was recently 
reinstated by the Ohio Supreme Court.\65\
---------------------------------------------------------------------------
    \64\ In March, 2002, the City of Boston dropped its suit against 
firearms manufacturers. See Editorial, ``Mayor was Right to Drop Gun 
Case,'' The Boston Herald (March 29, 2002).
    \65\ See ``Nation in Brief: Ohio Supreme Court Reinstates Lawsuit 
Against Gunmakers,'' The Washington Post (June 13, 2002) at A8.
---------------------------------------------------------------------------
    However, the relationship between a tortious act and actual 
injury historically must be direct, not remote.\66\ The 
earliest American example of this concept occurred in Anthony 
v. Slaid.\67\ In that case, the plaintiff Anthony contracted to 
assist the poor by funding medical care and other 
assistance.\68\ The defendant Slaid's wife assaulted and beat 
one of the town paupers, resulting in expenses for his medical 
care and financial support, for which Anthony became 
responsible under his contract.\69\ Just as various public 
entities have alleged with reference to firearm manufacturers, 
Anthony charged that because of the criminal acts of Slaid's 
wife, he ``was put to increased expense for [the poor person's] 
cure and support.'' \70\ Anthony sued Mrs. Slaid's husband as 
the then-legally-liable party, seeking reimbursement of his 
increased costs.\71\ The Massachusetts Supreme Court rejected 
Anthony's claim, holding ``[t]hat the damage is too remote and 
indirect,'' because it arose ``not by means of any natural or 
legal relation between the plaintiff and the party injured . . 
. but by means of the special contract by which he had 
undertaken to support the town paupers.'' \72\ The court 
reasoned that if Anthony were permitted to recover, a town 
might always seek recovery whenever ``an assault is committed, 
or other injury is done to the person or property of a town 
pauper, or of an indigent person who becomes a pauper.'' \73\ 
The court then sustained dismissal of Anthony's complaint.\74\ 
Soon thereafter, the United States Supreme Court applied the 
remoteness doctrine to bar a plaintiff's claims in Insurance 
Co. v. Brame.\75\ In that case, Craven McLemore died after the 
defendant Brame did ``wilfully shoot . . . and inflict upon him 
a mortal wound,'' causing Mobile Life Insurance Company to pay 
out the proceeds of a life insurance policy.\76\ Mobile then 
sued Brame for reimbursement of the insurance proceeds. Brame 
defended this claim on the grounds that because the ``loss is 
the remote and indirect result merely of the act charged,'' the 
insurance company had no claim against him.\77\ Finding that 
the relevant cases were ``substantially uniform against the 
right of recovery,'' \78\ the Supreme Court held that ``The 
relation between the insurance company and McLemore, the 
deceased, was created by a contract between them, to which 
Brame was not a party. The injury inflicted by him was upon 
McLemore, against his personal rights; that it happened to 
injure the plaintiff was an incidental circumstance, a remote 
and indirect result, not necessarily or legitimately resulting 
from the act of killing.'' \79\
---------------------------------------------------------------------------
    \66\ See Holmes v. Securities Investor Protection Corporation, 503 
U.S. 258, 269 (1992).
    \67\ 52 Mass. 290 (1 Met. 1846).
    \68\ See id. at 290-91.
    \69\ See id. at 291.
    \70\ Id.
    \71\ See id.
    \72\ Id.
    \73\ Id.
    \74\ See id.
    \75\ 95 U.S. 754, 759 (1877).
    \76\ Id. at 754.
    \77\ Id. at 756.
    \78\ Id. at 758.
    \79\ Id. See also Rockingham Ins. Co. v. Bosher, 39 Me. 253, 257 
(1855) (barring insurer from recovering, from arsonist, the burned 
building's loss of value because the dimunition in value was an 
``indirect consequence'' of the fire).
---------------------------------------------------------------------------
    Much more recently, the United States Supreme Court 
reaffirmed this principle in Holmes v. Securities Investor 
Protection Corp.\80\ In Holmes, an inside trader engaged in 
stock manipulation, which led to the liquidation of two 
stockbrokers whose customers the Securities Investor Protection 
Corp. (``SIPC '') was required to compensate.\81\ SIPC filed 
Racketeer Influenced and Corrupt Organizations (``RICO'') 
claims to recoup from the inside trader those amounts it had 
paid to the brokers' clients.\82\ The Court found that while 
the inside trader's tortious acts had caused cognizable injury 
to the brokers, the link between the insider's acts and the 
brokers' customers' alleged losses was too remote to permit 
SIPC to recover from the insider.\83\ Although a direct 
connection could be drawn from the insider's acts to the SIPC's 
expense, considerations of proximate cause prevented the 
assignment of endless layers of liability.\84\ As the Supreme 
Court stated, ``complaints of harm flowing merely from 
misfortunes visited upon a third person by defendant's acts . . 
. stand at too remote a distance to recover.'' \85\ As Justice 
Scalia noted, `` `[F]or want of a nail, a kingdom was lost' is 
a commentary on fate, not the statement of a major cause of 
action against a blacksmith.'' \86\
---------------------------------------------------------------------------
    \80\ 503 U.S. 258 (1992).
    \81\ See id. at 261-62.
    \82\ See id. at 263.
    \83\ See id. at 271.
    \84\ See id. at 276.
    \85\ See id. at 268.
    \86\ Id.* at 287 (Scalia, J., concurring) (quoting Associated Gen. 
Contractors v. Carpenters, 459 U.S. 519, 536 (1983)).
---------------------------------------------------------------------------
    To assist courts in assessing whether a claim is too remote 
to permit a suit to proceed, the Holmes Court developed a 
three-pronged test to address whether: (1) there are more 
direct victims of the alleged wrongdoing who can be expected to 
act as ``private attorneys general;'' (2) because it will be 
difficult to apportion damages, the court will be forced to 
``adopt complicated apportionment rules'' to avoid multiple 
recoveries; and (3) because the causal connection is 
attenuated, it will be difficult to define what proportion of 
the plaintiff's damages are attributable to the defendant's 
conduct.\87\ These principles cut sharply against the public 
entities' firearm lawsuits. First, where the public entities' 
alleged injuries flow from physical injury, there are many more 
directly affected plaintiffs to pursue putative claims. The 
fact that these individuals may not be able to seek recovery 
for the costs of certain public services borne by the city does 
not contradict the fact that they are the more directly injured 
parties. Second, the public entities' firearm lawsuits would 
force the same type of complicated damages apportionment that 
Holmes rejects. If cities may sue to recover the costs of 
providing services to individuals injured by firearm use, so 
can insurers, benefit funds, direct service providers such as 
hospitals, the injured parties' employers, and all who rely 
upon the injured party financially. In order to avoid multiple 
recoveries for a single injury, courts would have to require 
the intervention of multiple layers of parties into every suit. 
The resulting effort to apportion damages would inevitably 
result in arbitrary and unfair results. Finally, the 
circumstances in which some cities now seek to recover costs 
would pose significant apportionment difficulties of a 
different kind. In seeking to recover the costs of public 
services used responding to criminal, tortious, and accidental 
shootings, the cities bringing such lawsuits raise significant 
issues over apportionment of liability not just between firearm 
manufacturers, distributors, retailers, and resellers, but also 
between the shooter, the injured party for contributory 
negligence, and the public entities themselves. Clearly, the 
cause of violent crime is a complex, multifaceted problem that 
includes economic, social, political, geographic, demographic, 
and cultural components. Cities which have failed to provide an 
adequate level of law enforcement, or counties which have 
failed to provide adequate correctional programs could find 
themselves held accountable for a portion of the very damages 
they seek. There are many other potentially parties who could 
be alleged to be at ``fault,'' including inadequate school 
systems, drug dealers, overburdened courts, parents, and 
violent offenders themselves. It would be an insupportable 
burden on the courts to handle the apportionment of liability 
in this unmanageably complex context.
---------------------------------------------------------------------------
    \87\ Id. at 268.
---------------------------------------------------------------------------
    The remoteness doctrine articulated in Anthony, Brame, and 
Holmes has been embraced by the Second,\88\ Third,\89\ 
Fifth,\90\ Sixth,\91\ Seventh,\92\ and Ninth\93\ Circuit Courts 
of Appeals, as well as by multiple district courts,\94\ to bar 
claims brought by union health and welfare funds to recover 
medical expenses incurred on behalf of beneficiaries of the 
funds due to tobacco-related illnesses. Since April 1999 alone, 
six Federal courts of appeals\95\ and multiple Federal district 
courts\96\ have held--in cost-recovery cases nearly identical 
in theory to those brought by cities and municipalities against 
firearm manufacturers--that the remoteness doctrine bars damage 
claims by health benefits funds and other remote third-party 
payors of medical or other costs, as a matter of law. A small 
number of district court opinions have disagreed.\97\ However, 
subsequent decisions have effectively rejected or limited these 
minority opinions and have reasserted the importance of the 
remoteness doctrine in those jurisdictions.\98\
---------------------------------------------------------------------------
    \88\ See Laborers Local 17 Health & Benefit Fund v. Philip Morris, 
Inc., 191 F.3d 229, passim (2d Cir. 1999), reh'g and reh'g en banc 
denied (Aug. 6, 1999), as amended (Aug. 18, 1999), and cert. denied, 
120 S. Ct. 799 (January 10, 2000).
    \89\ See Steamfitters Local Union No. 420 Welfare Fund v. Philip 
Morris, Inc., 171 F.3d 912, 928 (3d Cir. 1999), cert. denied, 120 S. 
Ct. 844 (2000).
    \90\ See Texas Carpenters Health Benefit Fund v. Philip Morris, 
Inc., 199 F.3d 788, 789 (5th Cir. 2000).
    \91\ See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir. 
1999).
    \92\ See International Bhd. of Teamsters Local 734 Health & Welfare 
Trust Fund v. Philip Morris, Inc., 196 F.3d 818, 822, 825 (7th Cir. 
1999), reh'g denied sub nom. Arkansas Blue Cross & Blue Shield v. 
Philip Morris, Inc., No. 98-02612, 1999 WL 592671 (N.D. Ill. Aug. 3, 
1999), appeal filed sub nom. Health Care Serv. v. Brown & Williamson 
Tobacco Corp., No. 00-1468, 2000 WL 326505 (7th Cir. Mar. 28, 2000).
    \93\ See Oregon Laborers-Employers Health & Welfare Trust Fund v. 
Philip Morris, Inc., 185 F.3d 957, 963, 964 (9th Cir. 1999), cert. 
denied, 120 S. Ct. 789 (2000).
    \94\ See, e.g., Laborers & Operating Eng'rs Util. Agreement Health 
& Welfare Trust Fund v. Philip Morris, Inc., 42 F. Supp.2d 943, 947 (D. 
Ariz. 1999) (dismissing claims because ``'the plaintiff's injuries are 
entirely dependent upon injuries sustained by their participants and 
beneficiaries, making them at least one step removed from the 
challenged harmful conduct"') (quoting Oregon Laborers-Employers Health 
& Welfare Trust Fund v. Philip Morris, Inc., 17 F. Supp.2d 1170, 1179 
(D. Or. 1999)); Seafarers' Welfare Plan v. Philip Morris, Inc., 27 F. 
Supp.2d 623, 628 (D. Md. 1998) (dismissing claims because ``plaintiff's 
injuries are too remotely caused by the defendants'').
    \95\ See Texas Carpenters Health Benefit Fund, 199 F.3d at 789; 
International Bhd. of Teamsters Local 734 Health & Welfare Trust Fund, 
196 F.3d at 825-26; Oregon Laborers-Employers Health & Welfare Trust 
Fund, 185 F.3d at 964; Coyne, 183 F.3d at 496; Steamfitters Local Union 
No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 928 (3d Cir. 
1999); Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 
191 F.3d 229, 244 (2d Cir. 1999), reh'g and reh'g en banc denied (Aug. 
6, 1999), as amended (Aug. 18, 1999), and cert. denied, 120 S. Ct. 799 
(Jan. 10, 2000).
    \96\ See, e.g., Seibels Bruce Group, Inc. v. R.J. Reynolds Tobacco 
Co., 1999 WL 760527, at *6 (N.D. Cal. Sept. 21, 1999); Rhode Island 
Laborers' Health & Welfare Fund v. Philip Morris, Inc., 1999 WL 619064, 
at *6-7 (D.R.I. Aug. 11, 1999); Arkansas Carpenters' Health & Welfare 
Fund v. Philip Morris, Inc., 75 F. Supp.2d 936 (E.D. Ark. 1999); Hawaii 
Health & Welfare Trust Fund v. Philip Morris, Inc., 52 F. Supp.2d 1196, 
1199 (D. Haw. 1999); Association of Wash. Pub. Hosp. Dists. v. Philip 
Morris, Inc., 79 F. Supp.2d 1219, 1230 (W.D. Wash. 1999).
    \97\ See, e.g., Iron Workers Local Union v. Philip Morris, Inc., 23 
F. Supp.2d 771, 784 (N.D. Ohio 1998) (denying defendant's motion to 
dismiss based on remoteness doctrine); Blue Cross & Blue Shield v. 
Philip Morris, Inc., 36 F. Supp.2d 560, 579 (E.D.N.Y. 1999); City of 
St. Louis v. American Tobacco Co., 70 F. Supp.2d 1008, 1014 (E.D. Mo. 
1999); SEIU Health & Welfare Fund v. Philip Morris, Inc., 83 F. Supp. 
2d 70, 88-89 (D.D.C. 1999).
    \98\ For example, Iron Workers Local Union, 23 F. Supp. 2d at 784, 
did not survive the Sixth Circuit's subsequent affirmation of the 
remoteness doctrine in Coyne v. American Tobacco Co., 183 F.3d 488, 495 
(6th Cir. 1999). The Blue Cross & Blue Shield case also runs contrary 
to the Second Circuit's subsequent ruling in Laborers Local 17 Health & 
Benefit Fund v. Philip Morris, Inc., 191 F.3d 229 (2d Cir. 1999), and 
Tobacco/Governmental Healthcare Costs Litigation, 83 F. Supp.2d 125, 
135 (D.D.C. 1999), conflicts with SEIU Health & Welfare Fund, 83 F. 
Supp. 2d at 88-89.
---------------------------------------------------------------------------
    These Federal decisions flow, in turn, from a large body of 
state common law dismissing remote and derivative claims as a 
matter of law. For example, the Connecticut Supreme Court 
followed this rule more than one hundred years ago in the case 
of Connecticut Mutual Life Insuance Co. v. New York & New Haven 
Railway Co.,\99\ in which an insurer brought a negligence 
action against a tortfeasor responsible for the death of its 
insured.\100\ The court, relying on Anthony, held that ``the 
loss of the plaintiffs [i.e. the value of the life insurance 
proceeds], although due to the acts of [the defendants] . . . 
was a remote and indirect consequence of the misconduct of the 
defendants, and not actionable'' as a matter of law.'' \101\ 
Thereafter, Connecticut courts have consistently held that a 
plaintiff must possess a ``colorable claim of direct injury 
[which the complainant] has suffered or is likely to suffer, in 
an individual or representative capacity.'' \102\ Likewise, the 
common law of other states bars such remote claims.\103\
---------------------------------------------------------------------------
    \99\ 25 Conn. 265 (1856).
    \100\ See id. at 271.
    \101\ Id. at 276-77; see also Fidelity & Cas. Ins. Co. v. Sears, 
Roebuck & Co., 199 A. 93, 95-96, 124 Conn. 227 (1938) (insurer could 
not recover for injuries sustained by insured's employee as a result of 
defendant's negligence).
    \102\ Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220 
Conn. 689 (1991).
    \103\ See, e.g., Byrd v. English, 43 S.E. 419 (Ga. 1903); Kraft 
Chem. Co. v. Illinois Bell Telephone Co., 608 N.E.2d 243 (Ill. App. Ct. 
1992); Forcum-James Co. v. Duke Transp. Co., 93 So. 2d 228 (La. 1957); 
Brink v. Wabash R.R. Co., 60 S.W. 1058 (Mo. 1901); Holloway v. State, 
593 A.2d 716, 719 (N.J. 1991); Cincinnati Bell Tel. v. Straley, 533 
N.E.2d 764 (Ohio 1988).
---------------------------------------------------------------------------
    Several states have enacted statutes giving special 
protection to gun manufacturers and sellers after cities and 
other government entities began filing lawsuits against the gun 
industry in late 1998. Many immunity statutes only limit the 
ability of cities, counties, and other local governments to 
sue.\104\ Some immunity statutes are broader in scope and 
affect the legal rights of private individuals.\105\ But none 
do or can address the national problem addressed by H.R. 2037.
---------------------------------------------------------------------------
    \104\ See Ala. Code Sec. 11-80-11 (enacted 2000); Ariz. Rev. Stat. 
Sec. 12-714 (enacted 1999); Ark. Code Sec. 14-16-504 (enacted 1999); 
Fla. Stat. Sec. 790.331 (enacted 2001); Ga. Code Sec. 16-11-184 
(enacted 1999); Idaho Code Sec. 5-247 (enacted 2000); Ky. Rev. Stat. 
Sec. 65.045 (enacted 2000); La. Stat. Sec. 1799 (enacted 1999); Maine 
Rev. Stat. Sec. 2005 (enacted 1999); Mont. Code Sec. 7-1-115 (enacted 
1999); Nev. Rev. Stat. Sec. 12.107 (enacted 1999); Okla. Stat. 
Sec. 1289.24a (enacted 1999); Pa. Cons. Stat. Sec. 6120 (enacted 1999); 
Tenn. Code Sec. 39-17-1314 (enacted 1999); Texas Civil Practice & 
Remedies Code Sec. 128.001 (enacted 1999); Utah Code Sec. 78-17-64 
(enacted 2000); Va. Code Sec. 15.2-915.1 (enacted 2000).
    \105\ See Alaska Stat. Sec. 09.65.155 (enacted 1999) (precluding 
civil actions against gun manufacturers and sellers if based on the 
lawful sale, manufacture, or design of the gun, but with exceptions for 
claims based on a negligent design or manufacturing defect); Cal. Civ. 
Code Sec. 1714.4 (enacted 1983) (precluding firearm from being found 
defective in products liability action on ground that its benefits do 
not outweigh its risks); Colo. Rev. Stat. Sec. Sec. 13-21-501, 13-21-
504.5 (enacted 2000) (precluding tort actions against gun manufacturers 
and sellers for any remedy arising from injury or death caused by 
discharge of a firearm, but with exceptions for product liability 
claims and damages proximately caused by an action in violation of a 
statute or regulation); Idaho Code Sec. 6-1410 (enacted 1986) 
(precluding firearm from being found defective in products liability 
action on ground that its benefits do not outweigh its risks); Indiana 
Code Sec. Sec. 34-12-3-1 to -5 (enacted 2001) (barring all actions 
based on lawful design, manufacture, marketing, or sale of firearm and 
any recovery of damages resulting from criminal or unlawful misuse of 
firearm); Ky. Rev. Stat. Sec. 411.155 (enacted 1988) (providing that no 
defendant is liable for damages resulting from criminal use of firearm 
by third party, unless defendant conspired with or willfully aided, 
abetted, or caused the commission of the criminal act, but not limiting 
doctrines of negligence or strict liability relating to abnormally 
dangerous products or activities or defective products); La. Rev. Stat. 
Sec. 2800.60 (enacted 2000) (declaring that gun manufacturers and 
sellers are not liable for shooting injuries unless proximately caused 
by the unreasonably dangerous construction or composition of the 
product, are not liable for unlawful or negligent use of a gun that was 
lawfully sold, are not liable for failing to equip guns with magazine 
disconnect safeties, loaded chamber indicators, or personalization 
devices to prevent unauthorized use, and are not liable for failing to 
provide warnings about unauthorized use of firearms or the fact that a 
semi-automatic gun may be loaded even when the ammunition magazine is 
empty or removed); Md. Code Sec. 36-I (enacted 1988) (providing that 
defendant cannot be held strictly liable for damages resulting from 
criminal use of firearm by third person unless defendant conspired with 
or aided, abetted, or caused commission of criminal act); Michigan 
Compiled Laws Annotated Sec. 28.435(7) (enacted 2000) (providing that a 
gun dealer is not liable for damages arising from use or misuse of a 
gun if the dealer provides a trigger lock or gun case with each gun 
sold and complies with all other state and Federal statutory 
requirements); Nev. Rev. Stat. Sec. 41.131 (enacted 1985) (stating that 
no cause of action exists merely because firearm was capable of causing 
serious injury); N.C. Stat. Sec. 99B-11 (enacted 1987) (precluding 
firearm from being found defective in products liability action on 
ground that its benefits do not outweigh its risks); N.D. Code Sec. 32-
03-54 (enacted 2001) (providing that defendant cannot be held liable 
for lawful manufacture or sale of firearm, except in action for deceit, 
unlawful sale, or where transferor knew or should have known recipient 
would engage in lawful sale or transfer or use or purposely allow use 
in unlawful, negligent, or improper fashion); Ohio Rev. Code 
Sec. 2305.401 (enacted 2001) (providing that no member of firearm 
industry is liable for harm sustained as result of operation or 
discharge of firearm, unless firearm is sold illegally or plaintiff 
states product liability claim authorized by Chapter 2307 of Ohio 
Code); S.C. Code Sec. 15-73-40 (enacted 2000) (providing that plaintiff 
in products liability action involving firearm has burden to prove 
actual design of firearm was defective, causing it not to function in a 
manner reasonably expected by an ordinary consumer); S.D. Codified Laws 
Sec. 21-58-2 (enacted 2000) (providing that no one who lawfully 
manufactures or sells a firearm can be held liable because of the use 
of such firearm by another, but with exceptions including actions for 
negligent entrustment, for unlawful sales, or for injuries resulting 
from failure of firearms to operate in a normal or usual manner due to 
defects or negligence in design or manufacture); Section 82.006, Texas 
Civil Practice and Remedies Code (enacted 1993) (providing that 
plaintiff in products liability action must prove that actual design 
was defective, causing firearm not to function in manner reasonably 
expected by ordinary consumer); Wash. Rev. Code Sec. 7.72.030 (enacted 
1988) (precluding firearm from being found defective in design on 
ground that its benefits do not outweigh its risks).
---------------------------------------------------------------------------
Various Public Entities' Attempts to Breach the Separation of Powers
    In lawsuits brought by public entities that have been 
completely dismissed, the courts found that the plaintiffs were 
attempting to regulate firearms and that only the state had the 
power to regulate in this area.\106\ These courts saw clearly 
that advocates of controlling or banning firearms or ammunition 
are attempting to accomplish through litigation that which they 
have been unable to achieve by legislation. Calling the suit a 
misdirected attempt to ``regulate firearms and ammunition 
through the medium of the judiciary,'' a Florida district court 
of appeal affirmed the dismissal of Miami-Dade County's actions 
against more than two dozen gun makers, trade groups and 
retailers.\107\ The three-member Florida Third District Court 
of Appeal ruled unanimously that the suit was simply a ``round-
about attempt'' to have the courts use their injunctive powers 
to ``mandate the redesign of firearms and declare that the 
appellees' business methods create a public nuisance.'' The 
suit filed by the City of Cincinnati is also typical.\108\ The 
city sought ``injunctive relief which would require [the] 
defendants to change the methods by which they design, 
distribute[,] and advertise their products nationally.'' \109\ 
This was deemed ``an improper attempt to have [the] court 
substitute its judgment for that of the legislature, something 
which [the] court is neither inclined nor empowered to do.'' 
\110\ Furthermore, the court held that the injunctive relief 
sought by the city constituted a regulation of commercial 
conduct lawful in and affecting other states and, as such, was 
a violation of the Commerce Clause of the Constitution.\111\ 
The court in City of Chicago v. Beretta similarly found that 
the facts alleged by the city ``in terms of immediacy and 
proximity'' of the harm and its causation, were the kind of 
facts that the legislature could take heed of and contemplate 
and a court could not.\112\ In Philadelphia v. Beretta, the 
judge dismissed the lawsuit as an unauthorized attempt by the 
city to regulate firearms using its parens patriae powers 
granted to the Commonwealth.\113\ In Morial v. Smith & Wesson 
Corp., the Supreme Court of Louisiana held that the legislature 
did not intend a scheme allowing various cities to file suits 
against handgun manufacturers, and thereby effectively regulate 
the handgun industry in different ways.\114\
---------------------------------------------------------------------------
    \106\ See Ganim v. Smith & Wesson Corp. No. CV-99-0153198S, 1999 WL 
1241909 (Conn. Super. Ct. Dec. 10, 1999), at *6-7; Penelas v. Arms 
Tech., Inc. (order), No. 99-01941-CA-06 (11th Cir. Ct. Dec. 13, 1999) 
at 4-5, located at http://www.firearmslitigation.org; Cincinnati v. 
Beretta U.S.A. Corp., No. A99-02369, 1999 WL 809838 (Ohio C.P. Oct 7, 
1999) at *3. Judge Ruehlman found, in ruling on Cincinnati's claims, 
that the plaintiff was trying to get the court ``to substitute its 
judgment for that of the legislature.'' Cincinnati, 1999 WL 809838 at 
*1.
    \107\ Penelas v. Arms Technology Inc. et al., No. 3D00-113, 
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
    \108\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 
809838 (Ohio Com. Pl. Oct. 7, 1999).
    \109\ Id. at *1.
    \110\ Id.
    \111\ See id. Thus far, Federal district courts that have faced the 
``Commerce Clause'' issue have generally remanded the cases back to 
state courts, absent diversity of citizenship, holding that the 
municipal suits do not present a Federal question involving interstate 
commerce. See Boston v. Smith & Wesson, 66 F. Supp. 2d 246 (D. Mass. 
1999); Archer v. Arms Tech., Inc., No. CIV. 99-40254, 1999 WL 993306 
(E.D. Mich. Oct. 14, 1999).
    \112\ Order granting defendants' motion to dismiss, City of Chicago 
v. Beretta U.S.A. Corp., No. 98 CH 15596 (Ill. Cir. Ct. Sept. 15, 
2000).
    \113\ See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. 
Supp. 2d 882, 889 (E.D. Pa. 2000) (relying on Ortiz v. Commonwealth, 
681 A.2d 152 (Pa. 1996)).
    \114\ See Morial v. Smith & Wesson Corp., 785 So. 2d 1, 16 (La. 
2001).
---------------------------------------------------------------------------
    Through traditional tort suits, public entities are using 
both extraordinary compensatory and punitive damage requests 
and injunctive relief in an attempt to impose broad new 
regulations on the design, manufacture, and interstate 
distribution of firearms, outside of the appropriate 
legislative context. As explained by United States District 
Court Judge Buchmeyer, ``the plaintiff's attorney's simply want 
to eliminate hanguns.'' \115\
---------------------------------------------------------------------------
    \115\ Patterson, 608 F.Supp. at 1212. Judge Buchmeyer closed with 
the statement: ``As an individual, I believe, very strongly, that 
handguns should be banned and that there should be stringent, effective 
control of other firearms. However, as a judge, I know full well that 
the question of whether handguns can be sold is a political one, not an 
issue of products liability law--and that this is a matter for the 
legislatures, not the courts. Id. at 1216. Advocates for the lawsuits 
have also expressed a desire to bypass legislatures. Editorializing in 
favor of strict liability for gun companies, the Chicago Tribune asked, 
``Why should a court take this step? Why not a legislature? Because 
it's so highly unlikely.'' See ``Courts Must Lead Fight Against Guns,'' 
The Chicago Tribune (May 3, 1994). See also Bruce Rosen, ``Gun-control 
Weapon: Product Liability Suit,'' Record (Bergen Cty.N.J.) (February 
17, 1985) (``[A]ntigun activists around the country, backed by a cadre 
of lawyers who specialize in such suits, have been trying to do in 
courts what they haven't been able to do in the state legislatures''); 
David Lauter, ``Suits Target Handgun Makers,'' National Law Journal 
(November 29, 1982) at 12 (``Gun control advocates, who have organized 
a research program to assist the plaintiffs' attorneys, are hoping that 
plaintiffs' victories in court would force handgun manufacturers to 
adopt controls that nearly all legislatures have so far been unwilling 
to mandate.''). Another lawsuit proponent suggested the plaintiffs 
``bring the great power of our civil courts to bear on a problem that 
our legislatures . . . have not been able to solve.'' Speiser, 
``Disarming the Handgun Problem by Directly Suing Arms Makers,'' 
National Law Journal (June 8, 1981) at 29.
---------------------------------------------------------------------------
    However, as the United States Supreme Court has repeatedly 
recognized, ``regulation can be as effectively exerted through 
an award of damages as through some form of preventive relief . 
. . [W]e have recognized the phrase `state law' to include 
common law as well as statutes and regulations.'' \116\ More 
recently, the Court reiterated that regulatory ``power may be 
exercised as much by a jury's application of a state rule of 
law in a civil lawsuit as by a statute.'' \117\ Plaintiffs 
seeking bankrupting sums in compensation for the costs of 
public services provided to their citizen taxpayers, as well as 
punitive damages to ``punish the Defendants for their conduct 
and prevent a repetition of such conduct in the future.'' \118\ 
If successful, these damage claims can only result in an 
alteration of the lawful commercial practices of every firearm 
manufacturer, domestic or foreign, which sells its products in 
the United States.
---------------------------------------------------------------------------
    \116\ Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521-22 
(1992).
    \117\ BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 n.17 
(1996); see also San Diego Bldg. Trades Council v. Garmon, 359 U.S. 
236, 247 (1959) (``[R]egulation can be as effectively exerted through 
an award of damages as through some form of preventive relief. The 
obligation to pay compensation can be, indeed is designed to be, a 
potent method of governing conduct and controlling policy.'').
    \118\ Complaint at para.161(c), James v. Arcadia Mach. & Tool, No. 
L-6059-99 (N.J. Super. Ct. Essex County filed June 9, 1999).
---------------------------------------------------------------------------
    Public entities are seeking to achieve through the courts 
what they have been unwilling or unable to obtain 
legislatively, namely limits on the numbers, locations, and 
types of firearms sold, and a shift in the responsibility for 
violence response costs to the private sector. One consequence 
of this is an erosion of the separation of powers of the 
various branches of government.\119\ The separation of powers 
doctrine is ``implicitly embedded'' in the constitutions and 
laws of every state, and helps to define the scope of powers 
residing in the three branches of government.\120\ ``The 
doctrine of separation of powers prohibits courts from 
exercising a legislative function by engaging in policy 
decisions and making or revising rules or regulations.'' \121\ 
Just as large damage awards have a regulatory effect, requests 
for injunctive relief tend to force the judiciary to intrude 
into the decision-making process properly within the sphere of 
another branch of government.\122\
---------------------------------------------------------------------------
    \119\ See Jeffery Abramson, ``Where Do The Suits Stop?,'' The 
Washington Post (January 31, 1999) at B3; Editorial, ``Guns and the 
Court,'' Pittsburgh Post-Gazette (December 9, 1999) at A30; Knight, 
``Misfiring Through the Courts,'' Denver Post (October 21, 1999) at 
B11; Bill Pryor, ``Trial Lawyers Target Rule of Law,'' The Atlanta 
Constitution (January 13, 1999); P. Waldmeir, ``Trigger-happy 
Justice,'' Financial Times (January 16, 1999) at 17; Richard Epstein, 
``Lawsuits Aimed At Guns Probably Won't Hit Crime,'' The Wall Street 
Journal (December 9, 1999) at A26.
    \120\ See City of South Euclid v. Jemison, 503 N.E.2d 136, 138 
(1986).
    \121\ Route 20 Bowling Alley, Inc. v. City of Mentor, No. 94-L-141, 
1995 WL 869959, at *3 (Ohio Ct. App. Dec. 22, 1995) (citing Zangerle v. 
Evatt, 41 N.E.2d 369 (Ohio 1942)).
    \122\ See Gordon v. Texas, 153 F.3d 190, 194 (5th Cir. 1998) 
(citing Koohi v. United States, 976 F.2d 1328, 1332 (9th Cir. 1992) 
(``[B]ecause the framing of injunctive relief may require the courts to 
engage in the type of operational decision-making beyond their 
competence and constitutionally committed to other branches, such suits 
are far more likely to implicate political questions.'').
---------------------------------------------------------------------------
    Many courts have respected the separation of powers. For 
example, in Forni v. Ferguson,\123\ plaintiffs sought damages 
from the manufacturer of a firearm used by Colin Ferguson in 
the Long Island Rail Road shootings. Plaintiffs alleged, among 
other things, that the firearm was defective; that the 
``omission of an alternative design rendered the product 
unsafe;'' and that the ``defendants were negligent in 
marketing, distributing and selling the weapon and bullets to 
the general public.'' \124\ Plaintiffs asked the court to hold 
the firearm manufacturer liable for criminally-inflicted 
injuries. Rejecting this proposal, the trial court noted that 
``At oral argument of this motion, I told counsel that I 
personally hated guns and that if I were a member of the 
legislature, I would lead a charge to ban them. However, I do 
not hold that office. Rather, I am a member of the Judiciary, 
and must respect the separation of function.'' \125\
---------------------------------------------------------------------------
    \123\ No. 132994/94 (N.Y. Sup. Ct. Aug. 2, 1995), aff'd, 648 
N.Y.S.2d 73 (N.Y. App. Div. 1996).
    \124\ Id. at 2.
    \125\ Id. at 14; accord Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 
(10th Cir. 1988) (``To recognize such a cause of action in New Mexico 
would require an abrogation of the common law in a way bordering on 
judicial legislation.''); Delahanty v. Hinckley, 686 F. Supp. 920, 930 
(D.D.C. 1986) (``All of the above suggests to this Court that what is 
really being suggested by plaintiffs, and indeed by many citizens, is 
for this Court, or courts, to indirectly engage in legislating some 
form of gun control. The pitfalls noted above seem to be ample 
evidence, however, that such legislation should be left to the Federal 
and state legislatures which are in the best position to hold hearings 
and enact legislation which can address all of the issues and concerns 
as well as reflect the will of the citizens.''); Patterson v. 
Gesellschaft, 608 F. Supp. 1206, 1216 (D. Tex. 1985) (``[T]he question 
of whether handguns can be sold is a political one, not an issue of 
products liability law--and that . . . is a matter for the 
legislatures, not the courts.'') (emphasis omitted); Mavilia v. Stoeger 
Indus., 574 F. Supp. 107 (D. Mass. 1983); Knott v. Liberty Jewelry & 
Loan, Inc., 748 P.2d 661 (Wash. Ct. App. 1988).
---------------------------------------------------------------------------
Litigation by Public Entities and Others Should Not Restrict Interstate 
        Commerce by Limiting the Sale and Distribution of Firearms 
        Beyond a State's Borders
    In many of the complaints filed against firearm 
manufacturers, the plaintiffs seek to obtain through the 
courts--either through equitable remedies, the burden or threat 
of monetary damages, or both--stringent limits on the sale and 
distribution of firearms beyond the plaintiffs' jurisdictional 
boundaries. By virtue of the enormous compensatory and punitive 
damages sought, and because of the types of injunctive relief 
requested, these complaints in practical effect would require 
manufacturers of lawful firearms to curtail or cease all lawful 
commercial trade in those firearms in the jurisdictions in 
which they reside--almost always outside of the states in which 
these complaints are brought--to avoid potentially limitless 
liability. Insofar as these complaints have the practical 
effect of stopping or burdening interstate commerce in 
firearms, they seek remedies in violation of the United States 
Constitution.
    For example, in Chicago, the city alleges that it has 
enacted ``gun control ordinances that are among the strictest 
of any municipality in the country.'' \126\ Further, the city 
alleges that these ordinances will reduce homicides, suicides, 
and accidental shootings with firearms ``as long as residents 
of the jurisdiction imposing the restriction cannot legally 
purchase those firearms elsewhere.'' \127\ The city seeks to 
force dealers outside of its jurisdiction to stop selling 
firearms to Chicago residents who may lawfully purchase them 
pursuant to the Chicago Municipal Code, and to force 
manufacturers to stop lawfully supplying products to those 
dealers, directly or indirectly.\128\ Similarly, in the 
complaint filed by the District of Columbia, that city seeks to 
hold manufacturers liable for their lawful sales outside the 
District of firearms which ``subsequently are brought 
unlawfully [by others] into the District.'' \129\ Other cities 
seek injunctive relief aimed at ``prohibiting the sale of 
[firearms] in a manner which causes such firearms to 
inappropriately enter the State'' \130\ or at forcing 
fundamental changes in the methods by which manufacturers 
distribute firearms. In one case, a county specifically sought 
an injunction whereby the court would order firearms 
manufacturers ``to terminate shipments of firearms to dealers 
who do not enforce and abide by'' the county's notions for 
doing business and ``to cease shipments to dealers in proximity 
to [the] County of firearms'' that the county deemed 
``unreasonably attractive to criminals.'' \131\ Similarly, 
other complaints seek to preclude, limit, restrain or otherwise 
impact lawful commerce beyond its borders.
---------------------------------------------------------------------------
    \126\ Complaint at para.15, City of Chicago v. Beretta U.S.A. 
Corp., No. 98 CH 15595 (Ill. Cir. Ct. Cook County filed Nov. 12, 1998).
    \127\ Id.
    \128\ See id. at para.25.
    \129\ Complaint at para.51, District of Columbia v. Beretta U.S.A. 
Corp., No. 00-0000428 (D.C. Super. Ct. filed Jan 20, 2000).
    \130\ Complaint at para.4(a), Wherefore Clause, Camden County Bd. 
v. Beretta U.S.A. Corp., No. 99cv2518(JBS) (D.N.J. filed June 1, 1999).
    \131\ Amended Complaint at para.64(e)(1), (2), Penelas v. Arms 
Tech., Inc., No. 99-01941 CA 06 (Fla. Cir. Ct. Miami-Dade County filed 
June 4, 1999).
---------------------------------------------------------------------------
    Such efforts at extraterritorial regulation aim to reduce 
interstate commerce in a manner barred by the Commerce Clause 
\132\ and the Due Process Clause of the Fourteenth 
Amendment.\133\ Plaintiffs' claims directly implicate core 
federalism principles articulated by the United States Supreme 
Court in BMW of North America, Inc. v. Gore.\134\ Gore makes 
clear that ``[O]ne State's power to impose burdens on the 
interstate market . . . is not only subordinate to the Federal 
power over interstate commerce, but is also constrained by the 
need to respect the interests of other States . . .'' \135\ 
Further, ``the Constitution has a `special concern both with 
the maintenance of a national economic union unfettered by 
state-imposed limitations on interstate [and international] 
commerce and with the autonomy of the individual States within 
their respective spheres.' '' \136\ Healy v. Beer Institute 
\137\ in turn relied on Edgar v. MITE Corp.,\138\ which held 
that ``[t]he Commerce Clause . . . precludes the application of 
a state statute to commerce that takes place wholly outside of 
the State's borders, whether or not the commerce has effects 
within the State.'' \139\ Healy elaborated these principles 
concerning the extraterritorial effects of state regulations:
---------------------------------------------------------------------------
    \132\ U.S. Const. art. I, Sec. 8.
    \133\ U.S. Const. amend. XIV, Sec. 1.
    \134\ 517 U.S. 559, 571 (1996).
    \135\ Id. at 571 (citations and footnote omitted).
    \136\ Id. at 571-72 (quoting Healy v. Beer Inst., 491 U.S. 324, 
335-36 (1989)).
    \137\ 491 U.S. 324 (1989).
    \138\ 457 U.S. 624 (1982).
    \139\ Id. at 642-43.

        The critical inquiry is whether the practical effect of 
        the regulation is to control conduct beyond the 
        boundaries of the State . . . [T]he practical effect of 
        the statute must be evaluated not only by considering 
        the consequences of the statute itself, but also by 
        considering how the challenged statute may interact 
        with the legitimate regulatory regimes of other States 
        and what effect would arise if not one, but many or 
        every, State adopted similar legislation. Generally 
        speaking, the Commerce Clause protects against 
        inconsistent legislation arising from the projection of 
        one State regulatory regime into the jurisdiction of 
        another State. And, specifically, the Commerce Clause 
        dictates that no State may force an out-of-state 
        merchant to seek regulatory approval in one State 
        before undertaking a transaction in another.\140\
---------------------------------------------------------------------------
    \140\ Healy, 491 U.S. at 336-37 (citations omitted).

    The Commerce Clause is thus not only a provision that 
allocates power between Federal and state governments. It is 
also a ``substantive `restriction on permissible state 
regulation' of interstate commerce . . . `recognized as a self-
executing limitation on the power of the States to enact laws 
imposing substantial burdens on such commerce.' '' \141\ This 
limitation precludes the national regulatory programs sought in 
many complaints filed against the firearms industry.
---------------------------------------------------------------------------
    \141\ Dennis v. Higgins, 498 U.S. 439 (1991) (citations omitted) 
(quoting South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 
(1984)).
---------------------------------------------------------------------------
    Beyond its Commerce Clause analysis, Gore further holds 
that:

        it follows from these principles of state sovereignty 
        and comity that a State may not impose economic 
        sanctions on violators of its laws with the intent of 
        changing the tortfeasors' lawful conduct in other 
        States[,] . . . [n]or may [a state] impose sanctions on 
        [a defendant] in order to deter conduct that is lawful 
        in other jurisdictions.\142\
---------------------------------------------------------------------------
    \142\ BMW of North America, Inc. v. Gore, 517 U.S. 559, 572-73 
(1996).

    Central to Gore's due process holding is the principle that 
``[t]o punish a person because he has done what the law plainly 
allows him to do is a due process violation of the most basic 
sort.'' \143\
---------------------------------------------------------------------------
    \143\ Id. at 573 n.19 (quoting Bordernkircher v. Hayes, 434 U.S. 
357, 363 (1978)).
---------------------------------------------------------------------------
Hurdling Down the Slippery Slope
    Once it is established, in the context of firearms, that 
product manufacturers are responsible for ``socializing'' the 
cost of criminal product misuse, then it may be hard to avoid 
the slippery slope of making automobile dealers liable for 
drunk drivers, knife manufacturers liable for knife wounds, or 
food manufacturers liable for the harm caused by the fat 
content of snacks.
    If a company manufactures a legitimate product that is 
widely and lawfully distributed, and the product is criminally 
or unlawfully misused to injure a person, and the product is 
functioning properly, without any defect in its design or 
manufacture, a manufacturer should not be held liable for that 
injury. Yet unfortunately, the unpopular nature of firearms in 
some quarters has led to disastrous precedents that will weaken 
the moral foundation of tort law generally and the separation 
of powers if left unchecked by Congress. If the judicial system 
is allowed to bankrupt the firearms industry based on legal 
theories holding manufacturers liable for the criminal or 
unlawful misuse of their products, it is likely that similar 
liability will soon be applied to other industries whose 
products are statistically associated with misuse, such as the 
knife and automobile industries.
    Like firearms manufacturers, knife and automobile 
manufacturers, for example, are aware that a small percentage 
of their products will be misused by criminals or drunks, and 
knives and automobiles cannot currently be designed to prevent 
such misuse. The essential concept of the misuse doctrine is 
that products are necessarily designed to do certain limited 
tasks, within certain limited environments of use, and that no 
product can be made safe for every purpose, manner, or extent 
of use. Considerations of cost and practicality limit every 
product's range of effective and safe use, which is a 
fundamental fact of life that consumers readily understand. As 
Dean Prosser explained, ``Knives and axes would be quite 
useless if they did not cut.'' \144\ Likewise, as a Federal 
district court noted, ``Although a knife qualifies as an 
obviously dangerous instrumentality, a manufacturer need not 
guard against the danger it presents.'' \145\ Knives are mostly 
used for nonviolent purposes, such as cooking, but hundreds of 
thousands of violent crimes every year are perpetrated with 
knives. Thirty-five percent of homicides are committed with 
weapons other than guns.\146\ Further, 40% of aggravated 
assaults involving strangers are committed with knives or blunt 
objects, and 49% of aggravated assaults involving nonstrangers 
are committed with knives or blunt objects.\147\ Alcohol, too, 
exacts a toll on society.\148\ For example, in 1996, motor 
vehicle accidents involving intoxicated motorists accounted for 
over 13,000 fatalities.\149\ On an average day during the same 
year, it was determined that just under two million offenders 
under the jurisdiction of the criminal justice system consumed 
alcohol at the time they committed their offense.\150\ Further, 
two-thirds of victims who suffered violence by an intimate--a 
current or former spouse, boyfriend, or girlfriend--reported 
that alcohol had been a factor.\151\ Of all victims of 
violence, 26% involve the use of alcohol by the offender, and 
these victimizations result in estimated annual losses of $402 
million.\152\ Alcohol use by offenders is also involved in 22% 
of rapes.\153\ Further, of inmates who possessed a firearm 
during their current offense, 17% of those in Federal prison 
had parents that abused alcohol, and 18% of those in state 
prison had parents that abused alcohol.\154\
---------------------------------------------------------------------------
    \144\ William Prosser, Handbook of the Law of Torts Sec. 99.
    \145\ Dorsey v. Yoder Co., 331 F.Supp. 753, 759 (E.D.Pa.1971), 
aff'd, 474 F.2d 1339 (3d. Cir.1973).
    \146\ See U.S. Department of Justice, Bureau of Justice Statistics, 
http://www.ojp.usdoj.gov/bjs/cvict--c.htm.
    \147\ See U.S. Department of Justice, Office of Justice Programs, 
Bureau of Justice Statistics, ``Crime Victimization in United States, 
1999 Statistical Tables'' at Table 66 (January 2001, NCJ 184938).
    \148\ See Bureau of the Census, U.S. Dep't of Com., Statistical 
Abstract of the United States 1998, 110 (1998) (indicating that 20,231 
people died from alcohol induced causes in 1995).
    \149\ See Lawrence A. Greenfield, U.S. Dep't of Just., Alcohol and 
Crime 11 (1998) (providing an analysis of national data by the Bureau 
of Justice Statistics regarding the prevalence of alcohol in criminal 
activity).
    \150\ See id. at 20.
    \151\ See U.S. Department of Justice, Bureau of Justice Statistics, 
http://www.ojp.usdoj.gov/bjs/cvict--c.htm. (``Two-thirds of victims who 
suffered violence by an intimate (a current or former spouse, 
boyfriend, or girlfriend) reported that alcohol had been a factor. 
Among spouse victims, 3 out of 4 incidents were reported to have 
involved an offender who had been drinking. By contrast, an estimated 
31% of stranger victimizations where the victim could determine the 
absence or presence of alcohol were perceived to be alcohol-
related.''). Much higher percentage of violent crimes result in 
injuries when they involve an intimate partner (48%) or a family member 
(32%) than when involving a stranger (20%). See Thomas Simon, James 
Mercy, and Craig Perkins, Bureau of Justice Statistics Special Report, 
``Injuries from Violent Crime, 1992-98'' (June 2001, NCJ 168633).
    \152\ See Lawrence A. Greenfeld and Maureen A. Henneberg, ``Victim 
and Offender Self-Reports of Alcohol Involvement in Crime,'' 25 Alcohol 
Research and Health 1 at 22, 24 (2001).
    \153\ See U.S. Department of Justice, Office of Justice Programs, 
Bureau of Justice Statistics, ``Crime Victimization in United States, 
1999 Statistical Tables'' at Table 32 (January 2001, NCJ 184938).
    \154\ See Caroline Wolf Harlow, Bureau of Justice Statistics 
Special Report. ``Firearms Use by Offenders'' (November 2001, NCJ 
189369) at 5.
---------------------------------------------------------------------------
    Back in 1985, a Federal judge in Patterson v. Rohm 
Gesellschaft \155\ stated that plaintiff's unconventional 
application of tort law in the case would also apply to 
automobiles, knives, axes and even high-calorie food ``for an 
ensuing heart attack'' and that it would be ``nonsensical'' to 
claim that a product can be defective under the law when it has 
no defect. In 1999, the judge in the lawsuit brought by the 
City of Bridgeport, Connecticut, similarly observed that cities 
suing the firearms industry ``have envisioned . . . the dawning 
of a new age of litigation during which the gun industry, 
liquor industry, and purveyors of `junk' food would follow the 
tobacco industry in reimbursing government expenditures. . . 
.'' \156\ Only a few years later, this ``new age'' of 
litigation is already upon us. Whereas lawsuits brought against 
BB gun manufacturers \157\ and slingshot dealers \158\ were at 
one time viewed as dangerous judicial incursions into 
legislative roles, today such lawsuits against even fast food 
companies are proliferating.\159\
---------------------------------------------------------------------------
    \155\ 608 F. Supp. 1206, 1211-12 (N.D. Tex. 1985).
    \156\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 
Conn. Super. LEXIS 3330 at *14 (Conn. Super. Ct. Dec. 10, 1999).
    \157\ Koepke v. Crossman Arms Co., 582 N.E.2d 1000 (Ohio Ct.App., 
1989).
    \158\ Bojorquez v. House of Toys, Inc., 133 Cal.Rptr. 483, 484 
(Cal.Ct.App.1976) (stating plaintiffs ``ask us to ban the sale of toy 
slingshots by judicial fiat. Such a limitation is within the purview of 
the Legislature, not the judiciary.'').
    \159\ See ``Fat-suit lawyer files new class action for children,'' 
Nation's Restaurant News (September 16, 2002) (``The lawyer who sued 
McDonald's, Burger King, KFC and Wendy's in July over their alleged 
roles in contributing to a man's obesity and health problems has filed 
a similar class-action lawsuit here against those same chains on behalf 
of overweight children.'').
---------------------------------------------------------------------------
    Additional lawsuits against the firearms industry for the 
criminal or unlawful misuse of their products will only tend to 
establish legal precedents that will invite continued 
litigation against legal, national industries such as the fast 
food industry, and additional waves of litigation against such 
industries as the knife and alcohol industries, further 
undermining the moral basis of tort law, the separation of 
powers, and the American economy. According to one recent 
report:

        In the next few years, predicts insurance consultancy 
        Tillinghast-Towers Perrin, tort costs could increase 
        twice as fast as the economy, going from $200 billion 
        last year to $298 billion, or 2.4% of GDP, by 2005. 
        Since 1994 the average jury award in tort cases as a 
        whole has tripled to $1.2 million, in medical 
        malpractice it has tripled to $3.5 million and in 
        product liability cases it has quadrupled to $6.8 
        million, according to just released data from Jury 
        Verdict Research.'' \160\
---------------------------------------------------------------------------
    \160\ See Michael Freedman, ``The Tort Mess'' Forbes (May 13, 
2002).

    And according to a recent report by the Council of Economic 
---------------------------------------------------------------------------
Advisers:

        [T]he United States tort system is the most expensive 
        in the world, more than double the average cost of 
        other industrialized nations . . . To the extent that 
        tort claims are economically excessive, they act like a 
        tax on individuals and firms . . . With estimated 
        annual direct costs of nearly $180 billion, or 1.8 
        percent of GDP, the U.S. tort liability system is the 
        most expensive in the world, more than double the 
        average cost of other industrialized nations that have 
        been studied. This cost has grown steadily over time, 
        up from only 1.3 percent of GDP in 1970, and only 0.6 
        percent in 1950.\161\
---------------------------------------------------------------------------
    \161\ Council of Economic Advisers, ``Who Pays for Tort Liability 
Claims? An Economic Analysis of the U.S. Tort Liability System'' (April 
2002) at 1-2.

    Manufacturers, of course, often stand out as deep pockets 
worth pursuing and trial lawyers, faced with a judgment proof 
assailant and an uncompensated victim, may well pursue remote 
corporate targets. But there is an endless list of products 
that can be criminally misused to cause personal injury that 
may expose the manufacturer or seller to a lawsuit and, if left 
unchecked, the infinite flexibility of the ``foreseeability'' 
doctrine would allow for the crippling or destruction of entire 
industries and the usurpation of the legislative role by the 
judicial system, which in some instances has found that a 
manufacturer reasonably should foresee that a teenage girl will 
scent a candle by pouring cologne upon it below the flame; 
\162\ a person will insist on sitting in a chair \163\ or an 
exercise bicycle \164\ too frail for one's weight (300 and 500 
pounds, respectively); or a child will tilt or rock a soft-
drink vending machine to drop out a can without paying, causing 
the machine to fall on and kill him.\165\
---------------------------------------------------------------------------
    \162\ See Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975) 
(foreseeable--jury could properly so find).
    \163\ See Horne v. Liberty Furniture Co., 452 So. 2d 204 (La. Ct. 
App. 5th Cir. 1984), writ denied, 456 So. 2d 166 (La. 1984) and writ 
denied, 456 So. 2d 171 (La. 1984) (foreseeable--by implication).
    \164\ See Dunne v. Wal-Mart Stores, Inc., 679 So. 2d 1034 (La. Ct. 
App. 1st Cir. 1996) (foreseeable).
    \165\ Compare Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 
So. 2d 953 (Ala. 1993) (unforeseeable--person may not impose liability 
on another for consequences of person's own act of moral turpitude), 
with Morgan v. Cavalier Acquisition Corp., 432 S.E.2d 915 (1993) 
(foreseeable--jury could properly so find); Ridenour v. Bat Em Out, 707 
A.2d 1093 (App. Div. 1998) (change machine: foreseeable).
---------------------------------------------------------------------------

    INCREASED REGULATION THROUGH THE JUDICIARY THREATENS THE SECOND 
              AMENDMENT'S PROTECTION OF INDIVIDUAL RIGHTS

    Governments are immune from suit for failure, even grossly 
negligent or deliberate failure, to protect citizens from 
crime.\166\ Governments are similarly immune from suit by 
victims who were injured by criminals who were given early 
release on parole.\167\ Accordingly, it is inappropriate for 
the government, through the courts, to make it economically 
impossible for persons to own handguns for self-defense. Less 
than 1 percent of the firearms in circulation in the United 
States are ever involved in violence,\168\ yet over a dozen 
studies have estimated that citizens use firearms in self-
defense between 764,000 and 3.6 million times annually.\169\ 
Research has also demonstrated that nondiscretionary concealed 
gun laws--which require law-enforcement officials or a 
licensing agency to issue, without subjective discretion, 
concealed-weapon permits to all qualified applicants--reduce 
the incidence of violent crime, murder, rape, robbery, and 
aggravated assault.\170\ If the judiciary will not question the 
government's civil immunity for failure to protect people, the 
government's courts should not become a means of depriving the 
people of the tools with which they protect themselves.
---------------------------------------------------------------------------
    \166\ For example, in Warren v. District of Columbia, 444 A.2d 1 
(D.C. 1981), the plaintiffs sustained injuries as a result of the 
criminal conduct of third parties. Their injuries were exacerbated and 
their recovery impeded because of malfeasance on the part of the 
police. The court held that there was no special relationship between 
the public and law enforcement; thus, the police were under no duty to 
provide protection or other services to the general public. See id. at 
2-4. See also Bowers v. DeVito 686 F.2d 616 (7th Cir.1982) (no Federal 
Constitutional requirement that police provide protection); Calogrides 
v. Mobile, 475 So.2d 560 (Ala.1985); Cal.Govt.Code Sec. Sec. 845 (no 
liability for failure to provide police protection) and 846 (no 
liability for failure to arrest or to retain arrested person in 
custody); Davidson v. Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252; 
649 P.2d 894 (1982); Stone v. State 106 Cal.App.3d 924, 165 Cal.Rptr. 
339 (1980); Morgan v. District of Columbia, 468 A.2d 1306 
(D.C.App.1983); Sapp v. Tallahassee, 348 So.2d 363 (Fla.Dist.Ct.App.), 
cert. denied 354 So.2d 985 (Fla.1977); Ill.Rev.Stat. 4-102; Keane v. 
Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321 (1st Dist.1968); Jamison v. 
Chicago, 48 Ill.App.3d 567 (1st Dist.1977); Simpson's Food Fair v. 
Evansville, 272 N.E.2d 871 (Ind.App.); Silver v. Minneapolis 170 N.W.2d 
206 (Minn.1969); N.J.Stat,Ann. Sec. Sec. 59:2-1, 59:5-4 (1972); 
Wuetrich v. Delia, 155 N.J.Super. 324, 326, 382 A.2d 929, 930, cert. 
denied, 77 N.J. 486, 391 A.2d 500 (1978), aff'g 134 N.J.Super. 400, 341 
A.2d 365 (N.J.Super.Ct., Law Div., 1975); Chapman v. Philadelphia, 290 
Pa.Super. 281, 434 A.2d 753 (Penn.1981); Morris v. Musser, 84 Pa.Commw. 
170, 478 A.2d 937 (1984).
    \167\ Dennis Hevesi, ``New York is Not Liable for Murders,'' The 
New York Times (July 10, 1987).
    \168\ See H. Sterling Burnett, Nat'l Center for Pol'y Analysis, 
Suing Gun Manufacturers: Hazardous to Our Health (1999).
    \169\ See Gary Kleck, Targeting Guns: Firearms and Their Control 
150-89 (1997). See, e.g., Dave Birkland, ``Woman Shoots, Kills Armed 
Intruder in West Seattle,'' The Seattle Times (April 25, 2002).
    \170\ See John R. Lott, Jr. More Guns Less Crime: Understanding 
Crime and Gun Control Laws (2d. ed. 2000) at 77-79 (Figures 4.5, 4.6, 
4.7, 4.8, and 4.9).
---------------------------------------------------------------------------
    Researchers have estimated that Americans use guns for 
self-protection as often as 2.1 to 2.5 million times a year. 
The estimate may seem remarkable in comparison to expectations 
based on conventional wisdom, but it is has been noted that it 
is not implausibly large in comparison to various gun-related 
phenomena. There are probably over 220 million guns in private 
hands in the United States, indicating that only about 1% of 
them are used for defensive purposes in any 1 year.\171\ Only 
24% of the gun defenders in the study reported firing the gun, 
and only 8% reported wounding an adversary.\172\ Guns were most 
commonly used for defense against burglary, assault, and 
robbery.\173\ Also, a disproportionate share of defensive gun 
users are African-American or Hispanic compared to the general 
population.\174\
---------------------------------------------------------------------------
    \171\ See Gary Kleck and Marc Gertz, ``Armed Resistance to Crime: 
The Prevalence and Nature of Self-Defense With a Gun,'' 86 Journal of 
Crim. Law & Criminology (1995) at 167.
    \172\ Id. at 173.
    \173\ Id. at 175.
    \174\ Id. at 178.
---------------------------------------------------------------------------
    Research also indicates that women and blacks benefit most 
from being able to have a gun for protection:

        Murder rates decline when either more women or more men 
        carry concealed handguns, but the effect is especially 
        pronounced for women. One additional woman carrying a 
        concealed handgun reduces the murder rate for women by 
        about 3-4 times more than one additional man carrying 
        concealed handgun reduces the murder rate for men. This 
        occurs because allowing a women to defend herself with 
        a concealed handgun produces a much larger change in 
        her ability to defend herself than the change created 
        by providing a man with a handgun . . . [B]lacks 
        benefit more than other groups from concealed-handgun 
        laws. Allowing potential victims a means for self-
        defense is more important in crime-prone [inner city] 
        neighborhoods.\175\
---------------------------------------------------------------------------
    \175\ See John R. Lott, Jr. More Guns Less Crime: Understanding 
Crime and Gun Control Laws (2d. ed. 2000) at 20.

    The benefits to women and blacks, and others, from being 
able to have a gun for protection will be reduced if 
unrestrained gun industry liability is allowed to add hundreds 
of dollars to the price of guns such that people are priced out 
of the market.
    Proponents of lawsuits aimed at driving gun manufacturers 
out of business generally deny that people have any right at 
all to keep and bear arms. They argue that the Second Amendment 
``right of the people to keep and bear arms'' is a right which 
is ``granted'' solely to state government to maintain 
uniformed, select militias, not individuals. However, the most 
recent and comprehensive scholarship supports the proposition 
that the Second Amendment to the Constitution protects an 
individual right to keep and bear arms.\176\
---------------------------------------------------------------------------
    \176\ See Laurence Tribe, I American Constitutional Law 902 n.221 
(Foundation Press 2000) (stating Second Amendment confers an individual 
right of U.S. citizens to ``possess and use firearms in the defense of 
themselves and their homes--not a right to hunt for game, quite 
clearly, and certainly not a right to employ firearms to commit 
aggressive acts against other persons--a right that directly limits 
action by Congress or by the Executive Branch and may well, in 
addition, be among the privileges or immunities of United States 
citizens protected by Sec. 1 of the Fourteenth Amendment against state 
or local government action.''); Akhil Amar, ``The Bill of Rights and 
the Fourteenth Amendment,'' 101 Yale L.J. 1193, 1265 (``The Second 
Amendment, however, illustrates that states' rights and individual 
rights, `private' rights of discrete citizens and `public' rights of 
the citizenry generally, were sometimes marbled together into a single 
clause.'').
---------------------------------------------------------------------------
    The Fifth Circuit Court of Appeals recently issued a 
decision that relied on the most recent and comprehensive 
scholarship on the history and purpose of the Second Amendment 
to hold that the Second Amendment protects an individual's 
right to keep and bear arms. In United States v. Emerson,\177\ 
the Fifth Circuit stated that:
---------------------------------------------------------------------------
    \177\ 270 F.3d 203 (5th Cir. 2001).

        In sum, to give the Second Amendment's preamble its 
        full and proper due there is no need to torture the 
        meaning of its substantive guarantee into the 
        collective rights or sophisticated collective rights 
        model [both of which deny that the Second Amendment 
        recognizes an individual right] which is so plainly 
        inconsistent with the substantive guarantee's text, its 
        placement within the bill of rights and the wording of 
        the other articles thereof and of the original 
        Constitution as a whole.\178\
---------------------------------------------------------------------------
    \178\ Id. at 236.

    The court then concluded that ``We reject the collective 
rights and sophisticated collective rights models for 
interpreting the Second Amendment. We hold, consistent with 
[United States v.] Miller [, 307 U.S. 174 (1939)], that it 
protects the right of individuals, including those not then 
actually a member of any militia or engaged in active military 
service or training, to privately possess and bear their own 
firearms, such as the pistol involved here, that are suitable 
as personal, individual weapons and are not of the general kind 
or type excluded by Miller.'' \179\
---------------------------------------------------------------------------
    \179\ Id. at 260.
---------------------------------------------------------------------------
    The term ``militia'' in the Constitution was understood by 
the Founders to be composed of the people generally possessed 
of arms which they knew how to use, rather than to refer to 
some formal military group separate and distinct from the 
people at large.\180\ James Madison also plainly shared these 
views, as is reflected in his Federalist No. 46 where he argued 
that power of Congress under the proposed constitution ``[t]o 
raise and support Armies'' in art. 1, Sec. 8, cl. 12 posed no 
threat to liberty because any such army, if misused, ``would be 
opposed [by] a militia amounting to near half a million of 
citizens with arms in their hands'' and then noting ``the 
advantage of being armed, which the Americans possess over the 
people of almost every other nation,'' in contrast to ``the 
several kingdoms of Europe'' where ``the governments are afraid 
to trust the people with arms.''\181\
---------------------------------------------------------------------------
    \180\ See, e.g., Debates in the Convention of the Commonwealth of 
Virginia, reprinted in 3 J. Elliot, Debates in the Several State 
Conventions 425 (3d ed.1937) (statement of George Mason, June 14, 1788) 
(``Who are the militia? They consist now of the whole people . . .''); 
Letters from the Federal Farmer to the Republican 123 (W. Bennett 
ed.1978) (ascribed to Richard Henry Lee) (``[a] militia, when properly 
formed, are in fact the people themselves . . .''); Letter from Tench 
Coxe to the Pennsylvania Gazette (Feb. 20, 1778), reprinted in The 
Documentary History of the Ratification of the Constitution 
(Mfm.Supp.1976) (``Who are these militia? Are they not ourselves.'').
    \181\ The Federalist Papers at 299 (Rossiter, New American 
Library).
---------------------------------------------------------------------------
    As stated by one commentator quoted by the Fifth Circuit, 
``the [second] amendment's wording, so opaque to us, made 
perfect sense to the Framers: believing that a militia 
(composed of the entire people possessed of their individually 
owned arms) was necessary for the protection of a free state, 
they guaranteed the people's right to possess those arms.'' 
\182\
---------------------------------------------------------------------------
    \182\ Don B. Kates, Jr., ``Handgun Prohibition and the Original 
Meaning of the Second Amendment,'' 82 Mich.L.Rev. 204, 217-18 (1983) 
(quoted in Emerson, 270 F.3d at 235).
---------------------------------------------------------------------------
    The Supreme Court's decision in United States v. 
Miller,\183\ is not to the contrary of the holding in Emerson. 
In Miller, the Supreme Court held that the National Firearms 
Act's prohibition of certain weapons that tended to be uniquely 
used by criminals, such as sawed-off rifles and guns designed 
to fit silencers, did not violate the Second Amendment as such 
weapons were not those considered to be employed by a militia 
composed of regular, law-abiding citizens.\184\
---------------------------------------------------------------------------
    \183\ 307 U.S. 174 (1939).
    \184\ See Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) 
(interpreting Miller as resting entirely on the type of weapon involved 
not having any reasonable relationship to preservation or efficiency of 
a well regulated militia); United States v. Warin, 530 F.2d 103, 105-06 
(6th Cir.1976) (rejecting a Second Amendment challenge to a conviction 
for possessing an unregistered 7 1/2 inch barrel submachine gun 
contrary to the National Firearms Act and stating that Miller ``did not 
reach the question of the extent to which a weapon which is `part of 
the ordinary military equipment' or whose `use could contribute to the 
common defense' may be regulated'' and agreeing with Cases ``that the 
Supreme Court did not lay down a general rule in Miller.'').
---------------------------------------------------------------------------

                                Hearings

    No hearings were held on H.R. 2037.

                        Committee Consideration

    On October 2, 2002, the Committee met in open session and 
ordered favorably reported the bill H.R. 2037, with amendment 
by a recorded vote of 18 to 7, a quorum being present.

                         Vote of the Committee

    1. An amendment in the nature of a substitute was offered 
by Chairman Sensenbrenner. The amendment in the nature of a 
substitute provides that a ``qualified civil liability action'' 
cannot be brought in any State or Federal court, and that such 
actions that are pending on the date of enactment shall be 
dismissed immediately by the court in which the action was 
brought. ``Qualified civil liability action'' is defined as a 
civil action brought by any person against a manufacturer or 
seller of a qualified product, or a trade association, for 
damages resulting from the criminal or unlawful misuse of a 
qualified product by the person or a third party. This term, 
however, does not include (i) an action brought against a 
transferor convicted under section 924(h) of title 18, United 
States Code, or a comparable or identical State felony law, by 
a party directly harmed by the conduct of which the transferee 
is so convicted; (ii) an action brought against a seller for 
negligent entrustment or negligence per se; (iii) an action 
where a manufacturer or seller of a qualified product knowingly 
and willfully violated a State or Federal statute applicable to 
the sale or marketing of the product, and the violation was a 
proximate cause of the harm for which relief is sought; (iv) an 
action for breach of contract or warranty in connection with 
the purchase of the product; or (v) an action for physical 
injuries or property damage resulting directly from a defect in 
design or manufacture of the product, when used as intended. 
The amendment in the nature of a substitute defines 
manufacturers and sellers of qualified products as those who 
those who are federally licensed to manufacture, import, or 
deal in firearms and ammunition, as defined by Federal law. The 
amendment in the nature of a substitute offered by Chairman 
Sensenbrenner was agreed to by a rollcall vote of 18 yeas to 5 
nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Graham......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. Conyers.....................................................
Mr. Frank.......................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................              X
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18               5
----------------------------------------------------------------------------------------------------------------

    2. Final Passage. The motion to report favorably the bill 
H.R. 2037, as amended, was agreed to by a rollcall vote of 18 
yeas to 7 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Graham......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. Conyers.....................................................
Mr. Frank.......................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................              X
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18               7
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.R. 2037 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House of Representatives 
is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2037, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 4, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2037, the 
Protection of Lawful Commerce in Arms Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Ken Johnson 
(for Federal costs), who can be reached at 226-2860, Angela 
Seitz (for State and local impact), who can be reached at 226-
3220, and Cecil McPherson (for private-sector impact), who can 
be reached at 226-2940.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 2037--Protection of Lawful Commerce in Arms Act.
    H.R. 2037 would require courts to dismiss certain lawsuits 
filed against manufacturers and sellers of guns and ammunition, 
as well as the trade associations that represent them. 
Specifically, the bill would affect lawsuits seeking damages 
for gun-related crimes committed by consumers of these 
products. CBO estimates that implementing H.R. 2037 would not 
have a significant impact on the Federal budget. Enacting the 
bill would not affect direct spending or revenues.
    H.R. 2037 would impose both an intergovernmental mandate 
and a private-sector mandate as defined in the Unfunded 
Mandates Reform Act (UMRA) by prohibiting State, local, and 
tribal governments and the private sector from entering into 
lawsuits against certain manufacturers or sellers of firearms 
and ammunition products, and related trade associations, when 
such products are used unlawfully to do harm.
    Depending on how lawsuits would be resolved under current 
law, plaintiffs could stand to receive significant amounts in 
damage awards. Because few lawsuits have been completed, CBO 
has no basis for predicting the level of potential damage 
awards, if any. Therefore, we cannot determine the cost of 
these mandates (forgone net revenues from damage awards) or 
whether they would exceed the annual thresholds established in 
UMRA for intergovernmental mandates ($58 million in 2002, 
adjusted annually for inflation) and for private-sector 
mandates ($115 million in 2002, adjusted annually for 
inflation).
    On October 3, 2002, CBO transmitted a cost estimate for 
H.R. 2037 as ordered reported by the House Committee on Energy 
and Commerce on September 25, 2002. Neither version of the bill 
would have a significant effect on the Federal budget. Both 
versions of the bill contain intergovernmental and private-
sector mandates, but CBO has no basis for estimating the 
aggregate costs of these mandates.
    The CBO staff contacts for this estimate are Ken Johnson 
(for Federal costs), who can be reached at 226-2860, Angela 
Seitz (for the State and local impact), who can be reached at 
226-3220, and Cecil McPherson (for the private-sector impact), 
who can be reached at 226-2940. The estimate was approved by 
Peter H. Fontaine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 3 of the 
Constitution.

               Section-by-Section Analysis and Discussion

Sec. 1. Short Title.
    This sections provides that this Act may be cited as the 
``Protection of Lawful Commerce in Arms Act.''
Sec. 2. Findings; Purposes.
    This sections sets out the findings and purposes of the 
Act.
Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions in 
        Federal or State Court.
    This section provides that a ``qualified civil liability 
action'' may not be brought in any Federal or state court, and 
that any such qualified civil liability action that is pending 
on the date of the enactment of this Act shall be dismissed 
immediately by the court in which the action was brought.
Sec. 4. Definitions.
    This sections defines ``qualified civil liability action'' 
as a civil action brought by any person against a manufacturer 
or seller of a qualified product, or a trade association, for 
damages resulting from the criminal or unlawful misuse of a 
qualified product by the person or a third party. Excluded from 
this definition are (i) actions brought against a transferor 
convicted under section 924(h) of title 18, United States Code, 
or a comparable or identical State felony law, by a party 
directly harmed by the conduct of which the transferee is so 
convicted; (ii) actions brought against a seller for negligent 
entrustment or negligence per se; (iii) actions in which a 
manufacturer or seller of a qualified product knowingly and 
willfully violated a State or Federal statute applicable to the 
sale or marketing of the product, and the violation was a 
proximate cause of the harm for which relief is sought; (iv) 
actions for breach of contract or warranty in connection with 
the purchase of the product; and (v) actions for physical 
injuries or property damage resulting directly from a defect in 
design or manufacture of the product, when used as intended.
    This sections also defines manufacturers and sellers of 
qualified products as those who are federally licensed to 
manufacture, import, or deal in firearms and ammunition, as 
defined by Federal law.
    This section also defines ``negligent entrustment'' as the 
supplying of a qualified product by a seller for use by another 
person when the seller knows or should know the person to whom 
the product is supplied is likely to use the product, and in 
fact does use the product, in a manner involving unreasonable 
risk of physical injury to the person and others.

                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, OCTOBER 2, 2002

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:57 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.

           *       *       *       *       *       *       *

    The next item on the agenda, and pursuant to notice, I now 
call up the bill H.R. 2037, the ``Protection of Lawful Commerce 
in Arms Act,'' for purposes of markup and move its favorable 
recommendation to the House. Without objection, the bill will 
be considered as read and open for amendment at any point.
    [The bill, H.R. 2037, follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment in 
the nature of a substitute before all Members shall be 
considered the original text for purposes of amendment, shall 
be considered as read and open for amendment at any point.
    [The amendment in the nature of a substitute follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. And the Chair recognizes himself 
for 5 minutes.
    This bill provides protection for those in the firearms 
industry from lawsuits arising out of the criminal or unlawful 
acts of those who misuse their products. The substitute text we 
will consider today is based on the text of H.R. 123, the 
``Firearms Heritage Protection Act,'' introduced by Mr. Barr, 
and H.R. 1966, the ``Interstate Commerce Freedom Act,'' 
introduced by Mr. Hostettler.
    Although the intent of H.R. 2037 and the substitute is the 
same, the substitute is a more clearly drafted piece of 
legislation than H.R. 2037, which appears to be a bureaucratic 
Rube Goldberg device designed primarily for jurisdictional 
purposes.
    The substitute provides that a qualified civil liability 
action cannot be brought in any State or Federal court and that 
such actions that are pending on the date of enactment shall be 
dismissed immediately by the court in which the action was 
brought.
    Qualified civil liability action is defined as a civil 
action brought by any person against a manufacturer or seller 
of firearms or ammunition in interstate commerce for damages 
resulting from the criminal or unlawful misuse of such 
products. However, this term does not include an action against 
a person who transfers a firearm or ammunition knowing that it 
will be used to commit a crime of violence or a drug-
trafficking crime or a comparable or identical State felony 
law. It also does not include an action brought against the 
seller for negligent entrustment or negligence per se.
    The substitute includes some modifications to the text of 
H.R. 123 and H.R. 1966 as introduced. The substitute includes 
several additional exceptions to the jurisdictional provision: 
an exception for actions for breach of contract or warranty in 
connection with the purchase of a firearm or ammunition and an 
exception for actions for damages resulting directly from a 
defect in design or manufacture of a firearm or ammunition when 
used as intended.
    The substitute also makes clear that only licensed 
manufacturers and sellers are covered by the bill. Recent 
litigation against the tobacco industry has inspired lawsuits 
against the firearms industry on theories of liability that 
would hold firearms manufacturers and sellers liable for 
actions of those who use their products in a criminal or 
unlawful manner. Such lawsuits threaten to rip tort law from 
its moorings in personal responsibility and force firearms 
manufacturers into bankruptcy, leaving potential plaintiffs 
asserting traditional claims of product manufacturing defects 
unable to recover more than pennies on the dollar in a Federal 
bankruptcy court.
    Lawsuits seeking to hold the firearms industry responsible 
for criminal or unlawful use of its products are attempts to 
accomplish through litigation what has not been achieved by 
legislation in the democratic process. Various courts have 
correctly described such suits as ``improper attempts to have 
the court substitute its judgment for that of the 
legislature.'' As explained by another Federal judge, 
``Plaintiffs' attorneys simply want to eliminate handguns.''
    The unpopular nature of firearms in some quarters threatens 
to weaken the moral foundation of tort law generally, as well 
as the separation of powers, if left unchecked by the Congress. 
If the judicial system is allowed to eliminate the firearms 
industry based on legal theories holding manufacturers liable 
for the misuse of their products, it is also likely that 
similar liability will be applied to an infinitely long list of 
other industries whose products are statistically associated 
with misuse.
    In 1985, one Federal judge said it would be nonsensical to 
claim that a product can be defective under the law when it has 
no defect. He predicted that plaintiffs' unconventional 
application of tort law against such product would apply also 
to automobiles, knives, and even high-calorie food.
    A few years later, to the detriment of the American economy 
and consumers everywhere, this new age of litigation is already 
upon us. As we are all well aware by now, even once fanciful 
lawsuits against fast-food companies are rapidly proliferating. 
It is time for Congress to fulfill its constitutional duty and 
exercise its authority under the Commerce Clause to prevent a 
few State courts from bankrupting the national firearms 
industry and denying all Americans their fundamental rights to 
keep and bear arms.
    Who would like to give an opening statement on the 
Democratic side?
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, I ask unanimous consent that a 
statement of the Ranking Member, Mr. Conyers, be entered in the 
record at this time.
    Chairman Sensenbrenner. Without objection.
    [The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    It is truly a sad day, when cities and communities, all across 
America, are plagued with random acts of gun violence and this is our 
solution. There is no doubt that some bad apple members of the gun 
industry bear some responsibility because they have failed to 
incorporate safety devices and have marketed guns to criminals as being 
fingerprint-proof or easily concealed. Is this really the best proposal 
we have to offer to deal with this problem, granting immunity to the 
very culprits responsible for imposing the harm?
    First, it discourages gun manufacturers from adopting reasonable 
design safety enhancements such as ``gun locks'' or gun safety triggers 
by substantially limiting the type of permissible product liability 
actions that plaintiffs can bring against gun manufacturers. Section 4 
of the bill specifically leaves unprotected those individuals that 
sustain foreseeable injuries resulting from design defects. This 
loophole is unbelievable considering the increasingly high number of 
accidents being reported involving innocent children.
    Second, the bill irresponsibly protects dealers who recklessly sell 
to gun traffickers knowing (or with reason to know) that the trafficker 
intends to resell the guns to criminals. This loophole is achieved as a 
result of the bill's narrow definition of ``negligent entrustment.'' 
The bill defines ``negligent entrustment'' to include only initials 
transfers completed between the original seller and purchaser of a gun. 
It does not include secondary transfers even when the original seller 
is aware of the purchaser's intent to resell to a particular 
individual.
    Finally, the bill continues to perpetrate what former Supreme Court 
Chief Justice Warren Burger said was ``one of the greatest pieces of 
fraud, I repeat the word `fraud,' on the American people by special 
interest groups that I have ever seen in my lifetime.'' In its 
findings, it contains language conferring an individual right to keep 
and bear arms, without qualifying this right as the Court has 
repeatedly done. Over the past sixty years, the Supreme Court has gone 
to great lengths to explain that the right conferred by the Second 
Amendment only exists in relationship ``to the preservation or 
efficiency of a well regulated militia.''
    Some might say this bill is nothing more than an attempt at the 
11th hour of the Congress to solidify the Republican base by throwing a 
bone to gun owners.
    HR 2037 sends the wrong message to manufacturers, dealers and other 
members of the gun industry. It says to these various groups that even 
when you act irresponsibly, you will not be held accountable for your 
actions. I strongly urge my colleagues to oppose this measure.

    Chairman Sensenbrenner. The gentleman is recognized for 5 
minute.
    Mr. Scott. I yield the balance of my time to the gentlelady 
from California.
    Ms. Lofgren. Thank you, Mr. Scott.
    I will not use all of the time yielded to me, and I realize 
that on this Committee there are differences of opinion 
relative to the use of guns and the amount of regulation that 
should or should not be in place relative to gun usage and gun 
purchases by people who are felons or mentally ill and the 
like.
    But I don't think this bill really is about that fight. I 
think this bill is about California. And as a Californian, I 
really feel the need to stand up for the State government of 
California that has recently made a decision relative to tort 
law in California. And I think it is obvious that this--
California being such a large State and deciding that why 
should gun manufacturers--of all the people who make products, 
why should they be singled out not to be held accountable for 
harm that they do under the tort system?
    Having made that decision, I think it is improper for the 
Federal Government to go in and second-guess the California 
Assembly, State Senate, and Governor, who were lawfully elected 
by the voters of that State to make the determination relative 
to tort law.
    On a personal level, I must say I agree with the decision 
made by California legislators. You know, some of these cases 
have to do with negligence in the distribution and the like, 
but there are more traditional issues as well. One of the 
things we found recently is that the trigger locks put in place 
on handguns fail to protect and actually preclude the use of 
the weapons more than half the time.
    Now, if I'm a parent and I have a handgun and I put a 
trigger lock--I purchase a handgun with a trigger lock to 
protect my child and the trigger lock doesn't work and my child 
is harmed, why should the manufacturer be exempt from liability 
in that circumstance? I just don't think there's a good 
rationale for saying of all the things that we're going to pre-
empt, of all the industries we're going to protect, that we are 
going to single out gun manufacturers and say that they cannot 
be held accountable as any other manufacturer of a product 
would be under the traditional tort law.
    I recognize that, in addition to the substance of this 
issue, that the Chairman has once again clarified the 
jurisdiction of the Committee, and for that we're always 
grateful. But I would like to say--I don't plan to offer 
amendments to the bill because I don't think it can be fixed. I 
plan to vote no. I believe that it will not become law, and I 
think it is improper to try and overrule the State of 
California.
    And I yield back to Mr. Scott the time and thank him for 
yielding.
    Mr. Scott. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. Without objection, all Members will 
have 5 days to put opening statements in the record.
    [The prepared statement of Mr. Hostettler follows:]
       Prepared Statement of the Honorable John N. Hostettler, a 
          Representative in Congress From the State of Indiana
    Thank you, Mr. Chairman, for yielding.
    I support this bill and the Constitutional principles that it 
embraces, and I thank the Chairman for considering this important piece 
of legislation today.
    Manufacturers, dealers, and importers of firearms should not be 
subjected to frivolous lawsuits solely because they design, 
manufacture, and sell these products.
    These frivolous lawsuits threaten to slowly erode our 2nd Amendment 
rights.
    This bill, as amended with language from H.R. 123 and H.R. 1966, 
will ensure that manufacturers and dealers will not be held liable when 
harm is inflicted by a third party's misuse of the product.
    Using a firearm to engage in criminal activity is an intervening, 
superceding cause of harm for which the criminal should be punished 
instead of frivolously punishing the manufacturer of the firearm.
    This bill reaffirms our 2nd Amendment rights and restores freedom 
to this area of civil liability actions.
    I urge my colleagues to also support this bill and the important 
rights it protects.

    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    For the life of me, I cannot figure out why of all of the important 
pieces of legislation before the committee, why it is so urgent, with 
the short time that we have left before the session ends, to consider 
this bill that would grant extensive immunity to gun dealers and 
manufacturers, even if they engage in reckless or negligent behavior.
    It seems to me that this is another bone that the majority is 
throwing to another industry. This time the gun industry--perhaps a 
bone is the wrong analogy--this may be more appropriately characterized 
as a juicy steak. You would think that we would be leery of considering 
legislation like this, that gives undue benefits to the gun industry in 
light of the public perceptions that congress is in the hands of 
corporate interests. In a year where we have witnessed the fall of 
Enron, MCI Worldcomm, Tyco and Adelphia you would think that we would 
tighten up regulation on potential abuses and threats available to 
corporations. This legislation proves otherwise.
    Section 4 of this legislation effectively eliminates protection for 
individuals that sustain foreseeable injuries resulting from design 
defects. I don't know how this can be. This basically suggest that 
where there is an obvious risk based on the design of the gun and the 
gun manufacturer with his eyes closed could see the risk, the gun 
manufacturer will not be liable for the injury. This result is amazing 
in light of the number of innocent children who die from gun injuries. 
Surely gun manufactures should be responsible for correcting 
foreseeable risks.
    Another problem is the bill's definition of Negligent entrustment. 
The bill defines this to include only initial transfers completed 
between the seller and purchaser of a gun even where the seller has 
knowledge that the original purchaser plans to transfer the gun to high 
risk individuals. In this time of terrorism, and in a nation where our 
communities are ripped with gun violence, it seems to me that we would 
want to hold manufacturers liable for their knowledge a seller's intent 
to transfer a gun to a high risk individual. This bill chooses to do 
the opposite and give these manufactures cover.
    Again, Mr. Chairman, this is the wrong message for us to send at 
the wrong time. There are other issues of great importance pending this 
committee and we should be addressing those measures as opposed to 
addressing handouts to the gun lobby.
    Thank you Mr. Chairman.
    Our current law protects our nation's citizens from The protection 
of our society rests on two judicial pillars--criminal and civil law. 
Under criminal law, gun dealers and manufacturers are prohibited from 
selling to a certain narrowly defined class of people--people who 
already have convictions, people who are fugitives from justice, and 
people in a number of other categories.
    But these criminal gun laws are not sufficient by themselves. We 
rely on the civil justice system to impose on gun dealers and 
manufacturers a duty to act reasonably and responsibly when selling 
their products.
    Like other businesses, and like everyone else in America, if gun 
dealers and manufacturers do not act reasonably--if they act 
negligently, or if they blatantly disregard the obvious consequences of 
their actions--they may be held liable. This is important, because they 
are society's last checkpoint before deadly weapons are placed directly 
into the hands of dangerous individuals.
    If we ever wanted to give gun dealers and manufacturers an 
incentive to act carelessly and recklessly, H.R. 2037 is the way to do 
it.
    The bill says to gun manufacturers and gun dealers: go ahead and 
ignore common sense, disregard the consequences of your actions, and we 
will let you off the hook. As long as you meet the technical letter of 
the criminal statutes, you are no longer responsible for irresponsible 
and reckless actions. You, unlike any other industry, are no longer 
required to act reasonably.
    This proposed bill is even more outrageous considering the numerous 
examples of gun dealers and manufacturers who bury their heads in the 
sand and try to avoid responsibility for the damage they cause. Why are 
we choosing this industry, which has such a poor record, to single out 
for special exemptions?
    At my request, undercover investigators from the U.S. General 
Accounting Office posed as gun buyers who wanted to acquire armor 
piercing ammunition. The GAO investigators approached numerous dealers 
and openly discussed whether the ammunition would be able to ``take 
down'' an airplane or pierce an armored limousine.
    Despite these incredible reg flags, every single ammunition dealer 
that GAO spoke with was willing to make the sale. Not one dealer even 
reported these suspicious activities to law enforcement authorities. 
None of these dealers took any actions that a ``reasonable'' person in 
their shoes would have taken under the same circumstances.
    I have a copy of several excerpts from GAO's undercover tape 
recordings, which I would like to make part of the record.
    My point is not that dealers who act like the ones recorded on the 
GAO tapes should be held liable per se. Each case should be considered 
on the basis of the specific facts surrounding it. But what is 
important is preserving the civil justice system as a way of holding 
people accountable if they do act irresponsibly.
    Gun dealers and gun manufacturers are not the only ones who should 
have a duty to act responsibly. We in Congress should act responsibly 
as well. But this is not responsible legislation, and it should be 
rejected by the Committee.

    [The prepared statement of Mr. Wexler follows:]
Prepared Statement of the Honorable Robert Wexler, a Representative in 
                   Congress From the State of Florida
    Thank you, Mr. Chairman.
    The basis of product liability law is grounded in common sense; 
product manufacturers and sellers must take reasonable precautions to 
prevent injury. This legislation would exempt the gun industry from 
much of the liability for actions of which they hold a level of 
responsibility. As a result, gun manufacturers who refuse to build 
safety features into their products could simply release their wares 
into the marketplace without a care. Gun sellers who refuse to take 
reasonable precautions to prevent criminals from obtaining firearms 
would be equally as carefree.
    It is not unreasonable to have gun manufacturers provide safety 
devices to prevent accidental injury. It is not unreasonable to require 
gun sellers to take steps to prevent criminals from obtaining firearms. 
We only ask that those in the gun industry do what people in every 
industry do--use common sense. So being presented with this 
legislation, I must ask why the bill's proponents think it is 
unreasonable to believe that gun manufacturers and sellers are unable 
to exercise common sense. My fear is not that they are unable, but that 
they are unwilling.
    It is more than irresponsible to exempt gun manufacturers and 
sellers from these laws; it is unconscionable. The House majority 
leadership should be ashamed of themselves for trying to send a 
legislative gift basket to the gun industry at the expense of victims 
of firearm injury. In the waning days of this Congress, when meaningful 
legislation to improve the lives of all Americans is left waiting to be 
considered, it is especially insulting to the families of these victims 
that their right to seek redress in court would be preempted by 
lawmakers seeking only to serve the needs of the gun industry.
    I ask that my colleagues exercise common sense and vote down this 
legislation.
    Thank you, Mr. Chairman.

    [Intervening business.]
    We will now return to H.R. 2037. Are there amendments?
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Frank. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Frank. I got in trouble last time and caused some 
confusion when I moved to change the title, so I won't do that 
now, but it does seem to me this is inappropriately titled. 
Instead of the Protection of Lawful Commerce in Arms Act, it 
ought to be the Decent Burial for the Doctrine of States Rights 
Act, because it is now very clear that the notion that there is 
some general boundary between Federal and State concerns has 
been dissolved in a bath of right-wing ideology in this 
Committee and elsewhere.
    Whenever States, either through their legislature or 
through their courts or through any other duly constituted 
State entity, threaten to engage in public policies which have 
historically and constitutionally been the prerogative of the 
States, but which a majority of this Committee and this House 
does not like, States rights goes out the window.
    This is an argument that says we, the Federal Government, 
will pre-empt anytime, anywhere, anyplace, what States are 
doing that we don't like.
    Now, I must say that from what I have seen, I have not yet 
been persuaded on the merits of any lawsuit against the gun 
manufacturers. I believe that if I were the official in a local 
government or a State government, if I were involved in this, I 
would not bring such suits. I think they are a mistake. But I 
do not understand when it became out job to be the supervisory 
board for the State courts.
    And let's be very clear. There is no principle left, there 
is no rule that says, well, these are State matters and these 
are Federal matters. Federal matters are whatever this Congress 
wants them to be.
    Now, as constitutional doctrine, that's perfectly 
legitimate. The people who wrote the Constitution 200-and-
whatever years ago didn't know a great deal about modern times. 
And it is valid to say that, in effect, things have gotten 
nationalized.
    My objection is not to the assertion of national supremacy. 
It is to the inconsistency with which it is asserted and the 
fact that it is governed by ideology.
    If people want to say straightforwardly that they are for 
the issue being decided at whichever level of government they 
are likely to favor the outcome, that's a perfectly reasonable 
position. But let's understand what we are saying. We are 
saying that modern technology and a whole range of other things 
have outdated that part of the Constitution, and the 
Constitution really no longer has the distinction between 
Federal and State jurisdictions. Because if this is a Federal 
issue, then so is virtually everything else. There is hardly a 
tort law that's left--we've done medical malpractice. We're 
doing this. I cannot think of anything that would be excluded 
from this rationale.
    So on that basis, I am voting against it. I must say that I 
do not myself hold to a strict constitutional States rights 
view. I do believe that there is a problem when we assert 
jurisdiction and impose uniformity in those matters which are 
best left to the individual discretion of the States. And so--
and as was made clear by the Chairman--this is a negative 
judgment on the capacity, perhaps good faith but certainly 
capacity of the State courts correctly to decide important 
measures. I do not think that adverse judgment on State courts 
is warranted. I do not think we ought to allow ideology to 
drive constitutional views. And I think we also ought to be 
clear that given whatever else we have done this year, this 
puts the final nail in the coffin of the doctrine that there 
are things which are constitutionally committed to the States 
and that we shouldn't have.
    Now, I realize this is the Congress and not the court. At 
the same time that Congress is pre-empting these various State 
decisions, we have a United States Supreme Court majority, 
generally cheered on by many of the Members of this Committee, 
that is systematically dismantling Federal laws with a scope 
beyond what I've generally seen. And so there are States 
rights. They shouldn't, I guess, overstate it.
    According to the prevailing conservative theory in America, 
the States have a right to discriminate against almost anybody 
except on racial grounds. States cannot be forbidden by the 
Federal Government to discriminate against people with 
handicaps or people because of their age or almost anything 
else. States cannot be compelled to respect the rights of 
certain citizens. That's a violation of States rights. But if 
the State courts decide to handle tort suits, medical 
malpractice here, matters that have traditionally been within 
the entire compass of the States, right-wing ideology will pre-
empt that. I think that is very bad public policy.
    Mr. Barr. Mr. Chairman?
    Chairman Sensenbrenner. Are there amendments? The gentleman 
from Georgia?
    Mr. Barr. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognize for 5 
minutes.
    Mr. Barr. Thank you.
    Mr. Chairman, I commend you for bringing up the legislation 
and offering the substitute. Even though this debate this 
morning is just getting started, we've already heard two Alice-
in-Wonderland propositions through the looking glass.
    On the one hand, we have been accused through the proposal 
before us today of carving out an exemption or an immunity from 
a particular industry when, in fact, what we're doing is not 
carving anything out; we are preventing courts from doing 
precisely that. Lawful, legitimate manufacturers and sellers of 
lawful, legitimate products have, through the entire course of 
our Nation's commercial history pre-dating the Constitution, 
have enjoyed immunity from being liable, held liable for a 
subsequent unforeseen misuse, including criminal misuse, of 
their products.
    These lawsuits that have been cropping up over the last few 
years are attempting to change all of that through the court 
system by bringing specious lawsuits, making one particular 
category of manufactured item or sold item, that is, firearms, 
liable when nobody else is. And all we're doing here is--we're 
not carving them out for an exemption from liability. We're 
simply saying that they ought to be treated like everybody else 
always has been and, in fact, is. So that is the most specious 
of specious arguments to say that we're carving out immunity 
from liability.
    The other one is what we've just heard, and that is that it 
is not a proper role for the Congress to step in and reassert 
an explicit constitutional right. The first amendment to the 
Constitution, the ``Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise 
thereof; or abridging the freedom of speech, or of the press,'' 
et cetera, I'll guarantee you that those that just rant and 
rail and rave against this particular bill as somehow not an 
exercise in proper federalism or federalist theory would be the 
first in line to propose that the Congress would step--should 
step in, would have to step in if any State or municipality 
dared to try and bring a lawsuit or pass a local ordinance or a 
piece of legislation that somehow infringed on free speech or 
infringed on freedom of the press or infringed on the 
establishment of religion clause. Yet when it comes to the 
second amendment, which is just as explicit as the first 
amendment in its recited guarantees of a right, an inherent 
right of the people, in this case the right to keep and bear 
arms, those on the other side that favor gun control step in 
and say, Ah, how dare you try and reassert, reaffirm that 
constitutionally protected right, and step in and tell 
jurisdictions such as municipalities that they cannot move to 
infringe that right.
    What we're doing here today, Mr. Chairman, in this piece of 
legislation, this proposal, both the underlying bill as well as 
the substitute, is to simply reaffirm that this is, in fact, a 
constitutionally guaranteed right and to make the statement 
that municipalities, for example, cannot just step in with 
impunity and try and derogate that right through these specious 
lawsuits. No other industry is subject to this, and here, 
again, we're not carving out the firearms industry or those who 
legitimately sell or retail firearms for special protection. 
We're simply saying that they shall not be subject to special 
punishment, unequal protection of the law, which is what these 
lawsuits would do and have tried to do.
    So this is a very sound piece of legislation. It is very 
carefully crafted, H.R. 123 and the substitute. It is not 
overly broad. It simply reaffirms a constitutionally guaranteed 
right and rights the ship of state in the proper context. We're 
not carving out anything special. We are simply saying that 
local courts, local municipalities cannot provide unequal 
protection of the law in carving out for punitive treatment a 
legitimate, lawful industry, which is, in fact, the firearms 
industry in this country.
    I yield back.
    Chairman Sensenbrenner. Are there amendments? If there 
are--the gentlewoman from California have an amendment?
    Ms. Waters. No. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Waters. I'd like to add my voice in opposition to this 
legislation and to in many ways reiterate our support of what 
my colleague has said. And I'd like to basically say to my 
friends who are always poised to support whatever the NRA would 
like to have done in this Congress that this in no way would 
lessen your support for what you believe is the letter of the 
law and the fourth amendment.
    For those of you who support the NRA and most of its 
activities, I think this is asking you to go a bit far. And I'd 
like for you to just consider it. What you're doing is carving 
out special exemption here from liability when, in fact, there 
are many other industries and manufacturers of many other 
products that have the responsibility for making sure those 
products are as safe as they can be, for making sure that they 
are utilized properly, to make sure that they know and 
understand everything about their product so as to ensure the 
safe use of that product.
    Here what we're simply doing is creating a very, very 
special exemption and saying under no circumstances, under no 
conditions should the manufacturers of guns have to assume 
liability for the unlawful use of that product.
    I think that's extraordinary, and I think that it's going a 
bit far. And I certainly would not want to think that the 
Congress of the United States would bring its heavy hand to try 
and turn around a law that has been produced in the State of 
California in an attempt to make sure that these products are 
not misused.
    So I would just ask you to think about this, to think about 
all that you have done to give comfort and protection to the 
right of people to manufacture guns, to the NRA to be able to 
promote and organize its efforts around the ability for people 
to own and maintain guns. You have done all of that. How much 
more do you need to do? I think this is asking you to go a bit 
far to give special exemption from liability protection to 
manufacturers, and I would ask you to reconsider. And I yield 
back the balance of my time.
    Chairman Sensenbrenner. Are there amendments? If there are 
no amendments, the question is on adoption of the amendment in 
the nature of a substitute. Those in favor will say aye? Those 
opposed, no?
    The ayes appear to have it.
    Ms. Waters. rollcall.
    Chairman Sensenbrenner. rollcall is ordered. The question 
is on adoption of the amendment in the nature of a substitute. 
Those in favor will, as your names are called, answer aye, 
those opposed, no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. No.
    The Clerk. Mr. Frank, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote, the gentleman from North Carolina, Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye.
    Chairman Sensenbrenner. Further Members who wish--the 
gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. Further Members who wish to record 
or change their votes? If not, the clerk will report.
    The Clerk. There are 18 ayes and 5 nays.
    Chairman Sensenbrenner. And the amendment in the nature of 
a substitute is agreed to.
    The Chair notes the presence of a reporting quorum. The 
question is on reporting the bill favorably. Those in favor 
will say aye. Opposed, no.
    The ayes appear to have it. The ayes have it and the----
    Mr. Barr. Recorded vote.
    Chairman Sensenbrenner. A recorded vote is requested. Those 
in favor of reporting the bill favorably will, as your names 
are called, answer aye, those opposed, no, and the clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. No.
    The Clerk. Mr. Frank, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. No. Thank you.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote. The gentleman from California, Mr. 
Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Chairman Sensenbrenner. The gentleman from South Carolina, 
Mr. Graham.
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye.
    Chairman Sensenbrenner. Other Members who--the gentleman 
from Ohio, Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Chairman Sensenbrenner. Other Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 6 nays.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Issa.
    Mr. Issa. Aye.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan.
    Mr. Meehan. No.
    Chairman Sensenbrenner. Any other stragglers?
    [No response.]
    The Clerk. Mr. Chairman, there are 18 ayes and 7 nays.
    Chairman Sensenbrenner. And that includes the votes of 
Messrs. Issa and Meehan?
    The Clerk. Yes, sir.
    Chairman Sensenbrenner. Okay. And the motion to report 
favorably is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute, incorporating the amendment adopted here today. 
Without objection, the Chairman is authorized to move to go to 
conference pursuant to House rules. Without objection, the 
staff is directed to make any technical and conforming changes, 
and all Members will be given 2 days as provided by the rules 
in which to submit additional, dissenting, supplemental, or 
minority views.

                                
