[House Report 108-59]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     108-59

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



 
               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

                                _______
                                

 April 7, 2003.--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

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1036]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1036) 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, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................    28
Committee Consideration..........................................    29
Vote of the Committee............................................    29
Committee Oversight Findings.....................................    30
Performance Goals and Objectives.................................    30
New Budget Authority and Tax Expenditures........................    30
Congressional Budget Office Cost Estimate........................    31
Constitutional Authority Statement...............................    32
Section-by-Section Analysis and Discussion.......................    32
Markup Transcript................................................    33
Dissenting Views.................................................    97
    The amendment is 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, protected by 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 firearms that operate 
        as designed and intended, 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 are 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, 
        manufacture, marketing, distribution, importation, or sale to 
        the public of firearms or ammunition that has 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 that function as designed and intended.
            (5) The possibility of imposing liability on an entire 
        industry for harm that is solely caused by others is an abuse 
        of the legal system, erodes public confidence in our Nation's 
        laws, threatens the diminution of a basic constitutional right 
        and civil liberty, invites the disassembly and destabilization 
        of other industries and economic sectors lawfully competing in 
        the free enterprise system of the United States, and 
        constitutes an unreasonable burden on interstate and foreign 
        commerce of the United States.
            (6) The liability actions commenced or contemplated by the 
        Federal Government, States, municipalities, and private 
        interest groups are based on theories without foundation in 
        hundreds of years of the common law and jurisprudence of the 
        United States and do not represent a bona fide expansion of the 
        common law. The possible sustaining of these actions by a 
        maverick judicial officer or petit jury would expand civil 
        liability in a manner never contemplated by the Framers of the 
        Constitution, by the Congress, or by the legislatures of the 
        several states. 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 when the 
        product functioned as designed and intended.
            (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 5 of that Amendment.
            (4) To prevent the use of such lawsuits to impose 
        unreasonable burdens on interstate and foreign commerce.
            (5) To protect the right, under the First Amendment to the 
        Constitution, of manufacturers, distributors, dealers, and 
        importers of firearms or ammunition products, and trade 
        associations, to speak freely, to assemble peaceably, and to 
        petition the Government for a redress of their grievances.

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 
or is currently pending.

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 or 
                injunctive relief 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 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) 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 Code) 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.

                          Purpose and Summary

    H.R. 1036, 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 or is currently pending. ``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 or injunctive relief 
        resulting from the criminal or unlawful misuse of a 
        qualified product by the person or a third party . . 
        .''
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    \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.''

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    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.
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    \2\ 18 U.S.C. Sec. 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 violation of a duty imposed by 
statute. See Black's Law Dictionary (7th ed. 1999).

    Manufacturers and sellers of qualified products are defined 
as those who are federally licensed to manufacture, import, or 
deal in firearms, as defined by Federal law. Persons engaged in 
the business of selling ammunition, as defined by Federal law, 
are also covered under H.R. 1036, if they engage in such 
business consistent with federal, State, and local law.

                Background and Need for the Legislation

    Congress, by passing H.R. 1036, 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.
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    \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).
    \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).
    \15\ Bojorquez v. House of Toys Inc., 62 Cal. App. 3d 930, 934 
(Cal. Ct. App. 4th Dist. 1976).
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    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 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 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\
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    \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).
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    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\
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    \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).
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    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\ 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.\38\
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    \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. 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).
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    As these cases demonstrate, the absence of a special 
relationship between criminal third parties and manufacturers 
means that negligence claims should be dismissed. Handgun 
manufacturers have no duty to control the conduct of third 
parties.\39\ 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.'' \40\ The judge asserted that Bridgeport ``cannot 
seriously maintain that reasonable certainty in calculating 
their damage claims is within the realm of possibility.'' \41\
---------------------------------------------------------------------------
    \39\ 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).
    \40\ 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).
    \41\ 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 
foundation of personal responsibility in which a product may 
not be defined as defective unless there is something ``wrong'' 
with it. 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. . . .'' \42\ Thus, Holmes rejected the 
notion of gun sellers' liability because of the intervening 
criminal act of another, and the ``wrong'' that he saw was that 
of the assailant, not the gun dealer.\43\ As the Supreme Court 
has stated, quoting James Madison in New York Times Co. v. 
Sullivan, ``Some degree of abuse is inseparable from the proper 
use of every thing. . . .'' \44\
---------------------------------------------------------------------------
    \42\ Oliver Wendell Holmes, ``Privilege, Malice, and Intent,'' 1894 
Harv.L. Rev. 1, 10 (1894).
    \43\ 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.
    \44\ 376 U.S. 254, 271 (1964) (quoting James Madison). 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. 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, Sec. 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.,\45\ 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.\46\ 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.'' \47\ Similarly, 
courts have dismissed city and county complaints seeking 
recovery at common law for injuries to remote third 
parties.\48\ As one commentator has described the issue of 
remoteness:
---------------------------------------------------------------------------
    \45\ 332 U.S. 301 (1947).
    \46\ See id. at 304.
    \47\ Id. at 315.
    \48\ 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).

        Gun manufacturers are licensed by the Federal 
        Government. They are permitted to sell their guns only 
        to distributors and wholesalers, all of whom are also 
        licensed. The lawsuits commonly acknowledge that these 
        transfers are conducted legally; no gun maker would 
        risk its corporate livelihood by selling to unlicensed 
        distributors. Moreover, these legal transactions are 
        the last stage in the process in which the 
        manufacturers exercise any control over their products. 
        Once the guns are transferred, the makers have nothing 
        to say about where they go. But the guns still have far 
        to travel. The distributors and wholesalers then supply 
        the retailers--your local gun store. Again, all the 
        parties to these transactions are licensed, it is 
        commonly acknowledged that nearly all of these 
        transactions, too, are carried out legally. Gun stores 
        then sell to individuals. Before they do, they are 
        required by the Federal Handgun Control and Violence 
        Protection Act (the Brady Law) to conduct a background 
        check on a prospective buyer. If the check reveals that 
        the buyer is, say, a convicted felon, the store must 
        decline the sale . . . [I]sn't this [remoteness] far 
        enough? Gun makers are Federal licensees selling a 
        legal product. The only sales in which they participate 
        are to other Federal licensees, after which they can 
        exercise no control over their product. Any individual 
        gun will usually pass, legally, through at least two 
        more hands (a wholesaler's and a retailer's), and often 
        several more, before being involved (if ever) in an 
        illegal sale. The manufacturer has nothing to say about 
        any of this. And of course, for any damage to be done, 
        some willful criminal must act.\49\
---------------------------------------------------------------------------
    \49\ Barton Aronson, ``Are Lawsuits Against Gun Makers Really the 
Best Way to Address the Huge Costs of Gun Violence?'' http://
writ.news.findlaw.com/aronson/20030319.html (March 19, 2003).
---------------------------------------------------------------------------

  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. D.C. Superior Court Judge Cheryl 
Long recently dismissed such claims against the firearms 
industry, writing that ``[t]he plaintiffs' myriad claims herein 
are burdened with many layers of legal deficiencies,'' \51\ but 
other courts have allowed such claims to proceed. 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.\52\ According to one commentator, 
``Since 1997, more than 30 cities and counties have sued 
firearm manufacturers in an attempt to force manufacturers to 
change the way they make and sell guns.'' \53\ However, gun 
manufacturers do not have the financial capacity of the 
cigarette companies whose sales average $45 billion 
annually.\54\ In contrast, the gun industry grosses only $1.5 
billion a year.\55\ It has been estimated that tobacco 
companies spend approximately $600 million a year defending 
against suits brought by the States.\56\ Gun companies are 
incapable of financing a similar defense.\57\ In fact, John 
Coale, one of the personal injury lawyers suing the firearms 
industry, told the Washington Post, ``The legal fees alone are 
enough to bankrupt the industry.'' \58\ 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, if that, in Federal bankruptcy 
court.\59\ 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.\60\ 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.\61\
---------------------------------------------------------------------------
    \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\ District of Columbia v. Beretta U.S.A. Corp., et al., 2002 WL 
31811717 (D.C. Super.), at *2.
    \52\ 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).
    \53\ H. Sterling Burnett, ``Firearms Cease-Fire?'' The Washington 
Times (March 21, 2003) at A21.
    \54\ See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits, 
The New York Times (March 21, 1999) at A32.
    \55\ See William C. Symonds et al., ``Under Fire,'' Business Week 
(August 16, 1999) at 63.
    \56\ See Fox Butterfield, ``Lawsuits Lead Gun Maker to File for 
Bankruptcy,'' The New York Times (June 24, 1999) at A14.
    \57\ Id.
    \58\ Sharon Walsh, ``Gun Industry Views Pact as Threat to Its 
Unity,'' The Washington Post (March 18, 2000) at A10.
    \59\ Id.
    \60\ 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.
    \61\ 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.\62\ 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.\63\ General 
aviation aircraft production plummeted between 1978 and 1991 
from 18,000 planes to less than 900.\64\ The manufacture of 
single engine piston aircraft fell to only 555 by 1993.\65\ 
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.\66\
---------------------------------------------------------------------------
    \62\ 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).
    \63\ 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.
    \64\ See id.
    \65\ See id.
    \66\ 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 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; \67\ 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.\68\
---------------------------------------------------------------------------
    \67\ 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). In its dismissal, the City 
of Boston stated that ``During the litigation the City has learned that 
members of the firearm industry have a longstanding commitment to . . . 
reducing criminal misuse of firearms.'' In voluntarily dismissing its 
case, the City of Boston also stated that ``The City and the Industry 
have now concluded that their common goals can be best achieved through 
mutual cooperation and communication, rather than through litigation, 
which has been expensive to both Industry and taxpayers, time-consuming 
and distracting in a time of national crisis.'' Exhibit A to 
Plaintiff's the City of Boston's and the Boston Public Health 
Commission, Unopposed Motion to Dismiss (March 27, 2002).
    \68\ 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.\69\ The 
earliest American example of this concept occurred in Anthony 
v. Slaid.\70\ In that case, the plaintiff Anthony contracted to 
assist the poor by funding medical care and other 
assistance.\71\ 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.\72\ 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.'' \73\ Anthony sued Mrs. Slaid's husband as 
the then-legally-liable party, seeking reimbursement of his 
increased costs.\74\ 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.'' \75\ 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.'' \76\ 
The court then sustained dismissal of Anthony's complaint.\77\ 
Soon thereafter, the United States Supreme Court applied the 
remoteness doctrine to bar a plaintiff's claims in Insurance 
Co. v. Brame.\78\ 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.\79\ 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.\80\ Finding that 
the relevant cases were ``substantially uniform against the 
right of recovery,'' \81\ 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.'' \82\
---------------------------------------------------------------------------
    \69\ See Holmes v. Securities Investor Protection Corporation, 503 
U.S. 258, 269 (1992).
    \70\ 52 Mass. 290 (1 Met. 1846).
    \71\ See id. at 290-91.
    \72\ See id. at 291.
    \73\ Id.
    \74\ See id.
    \75\ Id.
    \76\ Id.
    \77\ See id.
    \78\ 95 U.S. 754, 759 (1877).
    \79\ Id. at 754.
    \80\ Id. at 756.
    \81\ Id. at 758.
    \82\ 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.\83\ 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.\84\ SIPC filed 
Racketeer Influenced and Corrupt Organizations (``RICO'') 
claims to recoup from the inside trader those amounts it had 
paid to the brokers' clients.\85\ 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.\86\ 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.\87\ 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.'' \88\ 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.'' \89\
---------------------------------------------------------------------------
    \83\ 503 U.S. 258 (1992).
    \84\ See id. at 261-62.
    \85\ See id. at 263.
    \86\ See id. at 271.
    \87\ See id. at 276.
    \88\ See id. at 268.
    \89\ 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.\90\ 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 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.
---------------------------------------------------------------------------
    \90\ Id. at 268.
---------------------------------------------------------------------------
    The remoteness doctrine articulated in Anthony, Brame, and 
Holmes has been embraced by the Second,\91\ Third,\92\ 
Fifth,\93\ Sixth,\94\ Seventh,\95\ and Ninth\96\ Circuit Courts 
of Appeals, as well as by multiple district courts,\97\ 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, 
at least six Federal courts of appeals\98\ and multiple Federal 
district courts\99\ 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.\100\ However, subsequent decisions have 
effectively rejected or limited these minority opinions and 
have reasserted the importance of the remoteness doctrine in 
those jurisdictions.\101\
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    \91\ 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).
    \92\ 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).
    \93\ See Texas Carpenters Health Benefit Fund v. Philip Morris, 
Inc., 199 F.3d 788, 789 (5th Cir. 2000).
    \94\ See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir. 
1999).
    \95\ 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).
    \96\ 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).
    \97\ 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'').
    \98\ 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).
    \99\ 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).
    \100\ 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).
    \101\ 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). Blue Cross & Blue Shield v. Philip Morris, Inc., 36 F. 
Supp.2d 560, 579 (E.D.N.Y. 1999) 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.,\102\ in which an insurer brought a negligence 
action against a tortfeasor responsible for the death of its 
insured.\103\ 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.'' \104\ 
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.'' \105\ Likewise, the 
common law of other States bars such remote claims.\106\
---------------------------------------------------------------------------
    \102\ 25 Conn. 265 (1856).
    \103\ See id. at 271.
    \104\ 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).
    \105\ Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220 
Conn. 689 (1991).
    \106\ 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.\107\ Some immunity statutes are broader in scope and 
affect the legal rights of private individuals.\108\ But none 
do or can address the national problem addressed by H.R. 1036.
---------------------------------------------------------------------------
    \107\ 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).
    \108\ 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).
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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.\109\ 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.\110\ 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.\111\ The 
city sought ``injunctive relief which would require [the] 
defendants to change the methods by which they design, 
distribute[,] and advertise their products nationally.'' \112\ 
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.'' 
\113\ 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.\114\ 
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.\115\ 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.\116\ 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.\117\
---------------------------------------------------------------------------
    \109\ 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.
    \110\ Penelas v. Arms Technology Inc. et al., No. 3D00-113, 
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
    \111\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 
809838 (Ohio Com. Pl. Oct. 7, 1999).
    \112\ Id. at *1.
    \113\ Id.
    \114\ See id.
    \115\ 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).
    \116\ 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)).
    \117\ 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 attorneys simply want 
to eliminate handguns.'' \118\
---------------------------------------------------------------------------
    \118\ 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. ''\119\ 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. ''\120\ 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. ''\121\ 
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.
---------------------------------------------------------------------------
    \119\ Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521-22 
(1992).
    \120\ 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.'').
    \121\ 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.\122\ 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.\123\ As one court 
has stated, ``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. 
''\124\ 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.\125\ The New York Times 
reported recently that Elisa Barnes, the chief lawyer in a 
Brooklyn lawsuit against the firearms industry, ``is trying to 
change the way the gun industry does business.'' \126\ However, 
that is a job for voters and legislatures, not lawyers. In the 
words of Robert B. Reich, former Labor Secretary in the Clinton 
Administration, ``If I had my way, there'd be laws restricting 
cigarettes and handguns. [But] the [Clinton] White House is 
launching lawsuits to succeed where legislation failed. The 
strategy may work, but at the cost of making our frail 
democracy even weaker . . . You might approve the outcomes in 
these [] cases, but they establish a precedent for other cases 
you might find wildly unjust.'' \127\
---------------------------------------------------------------------------
    \122\ 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.
    \123\ See City of South Euclid v. Jemison, 503 N.E.2d 136, 138 
(1986).
    \124\ 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)).
    \125\ 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.'').
    \126\ Lynda Richardson, ``Challenging Gun Makers to Bear 
Responsibility,'' the New York Times (October 22, 2002) at B4.
    \127\ Robert Reich, ``Smoking, Guns,'' The American Prospect 
(January 17, 2000).
---------------------------------------------------------------------------
    Many courts have respected the separation of powers. For 
example, in Forni v. Ferguson,\128\ 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.''\129\ 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.'' \130\
---------------------------------------------------------------------------
    \128\ No. 132994/94 (N.Y. Sup. Ct. Aug. 2, 1995), aff'd, 648 
N.Y.S.2d 73 (N.Y. App. Div. 1996).
    \129\ Id. at 2.
    \130\ 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 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. ''\131\ 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.'' \132\ 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.\133\ 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.'' \134\ Other cities 
seek injunctive relief aimed at ``prohibiting the sale of 
[firearms] in a manner which causes such firearms to 
inappropriately enter the State'' \135\ 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.'' \136\ Similarly, 
other complaints seek to preclude, limit, restrain or otherwise 
impact lawful commerce beyond its borders.
---------------------------------------------------------------------------
    \131\ 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).
    \132\ Id.
    \133\ See id. at para.25.
    \134\ Complaint at para.51, District of Columbia v. Beretta U.S.A. 
Corp., No. 00-0000428 (D.C. Super. Ct. filed Jan 20, 2000).
    \135\ 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).
    \136\ 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 
\137\ and the Due Process Clause of the Fourteenth 
Amendment.\138\ Plaintiffs' claims directly implicate core 
federalism principles articulated by the United States Supreme 
Court in BMW of North America, Inc. v. Gore.\139\ 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. . . .'' \140\ 
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.'' \141\ Healy v. Beer Institute \142\ 
in turn relied on Edgar v. MITE Corp.,\143\ 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.'' \144\ Healy elaborated these principles 
concerning the extraterritorial effects of State regulations:
---------------------------------------------------------------------------
    \137\ U.S. Const. art. I, Sec. 8.
    \138\ U.S. Const. amend. XIV, Sec. 1.
    \139\ 517 U.S. 559, 571 (1996).
    \140\ Id. at 571 (citations and footnote omitted).
    \141\ Id. at 571-72 (quoting Healy v. Beer Inst., 491 U.S. 324, 
335-36 (1989)).
    \142\ 491 U.S. 324 (1989).
    \143\ 457 U.S. 624 (1982).
    \144\ 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.\145\
---------------------------------------------------------------------------
    \145\ 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.' '' \146\ This 
limitation precludes the national regulatory programs sought in 
many complaints filed against the firearms industry.
---------------------------------------------------------------------------
    \146\ 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.\147\
---------------------------------------------------------------------------
    \147\ 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.' '' \148\
---------------------------------------------------------------------------
    \148\ 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 that leads to 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 intoxicated 
individuals, and knives and automobiles cannot currently be 
feasibly 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.'' \149\ 
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.'' 
\150\ Knives are mostly used for nonviolent purposes, such as 
cooking, but hundreds of thousands of violent crimes every year 
are perpetrated with knives. 35% of homicides are committed 
with weapons other than guns.\151\ 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.\152\ Alcohol, too, 
exacts a toll on society.\153\ For example, in 1996, motor 
vehicle accidents involving intoxicated motorists accounted for 
over 13,000 fatalities.\154\ 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.\155\ 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.\156\ 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.\157\ Alcohol use by offenders is also involved in 22% 
of rapes.\158\ 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.\159\
---------------------------------------------------------------------------
    \149\ William Prosser, Handbook of the Law of Torts Sec. 99.
    \150\ Dorsey v. Yoder Co., 331 F.Supp. 753, 759 (E.D.Pa.1971), 
aff'd, 474 F.2d 1339 (3d. Cir.1973).
    \151\ See U.S. Department of Justice, Bureau of Justice Statistics, 
http://www.ojp.usdoj.gov/bjs/cvict--c.htm.
    \152\ 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).
    \153\ 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).
    \154\ 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).
    \155\ See id. at 20.
    \156\ 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).
    \157\ 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).
    \158\ 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).
    \159\ See Caroline Wolf Harlow, Bureau of Justice Statistics 
Special Report. ``Firearms Use by Offenders'' (November 2001, NCJ 
189369) at 5.
---------------------------------------------------------------------------
    Recognizing these social and legal dynamics back in 1985, a 
Federal judge in Patterson v. Rohm Gesellschaft \160\ 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. . . .'' \161\ Only a few 
years later, this ``new age'' of litigation is already upon us. 
Whereas lawsuits brought against BB gun manufacturers \162\ and 
slingshot dealers \163\ were at one time viewed as dangerous 
judicial incursions into legislative roles, today such lawsuits 
against even fast food companies are proliferating.\164\
---------------------------------------------------------------------------
    \160\ 608 F. Supp. 1206, 1211-12 (N.D. Tex. 1985).
    \161\ Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 
Conn. Super. LEXIS 3330 at *14 (Conn. Super. Ct. Dec. 10, 1999).
    \162\ Koepke v. Crossman Arms Co., 582 N.E.2d 1000 (Ohio Ct.App., 
1989).
    \163\ 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.'').
    \164\ 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.''). See also Roger Parloff, ``Is Fat the Next 
Big Tobacco?'' Fortune (January 21, 2003) (``On August 3, 2000, the 
parody newspaper The Onion ran a joke article under the headline 
Hershey's Ordered to Pay Obese Americans $135 Billion. The hypothesized 
class-action lawsuit said that Hershey ``knowingly and willfully'' 
marketed to children ``rich, fatty candy bars containing chocolate and 
other ingredients of negligible nutritional value,'' while ``spiking'' 
them with ``peanuts, crisped rice, and caramel to increase consumer 
appeal.'' Some joke. Last summer New York City attorney Sam Hirsch 
filed a strikingly similar suit--against McDonald's--on behalf of a 
class of obese and overweight children. He alleged that the fast-food 
chain ``negligently, recklessly, carelessly and/or intentionally'' 
markets to children food products that are ``high in fat, salt, sugar, 
and cholesterol'' while failing to warn of those ingredients' links to 
``obesity, diabetes, coronary heart disease, high blood pressure, 
strokes, elevated cholesterol intake, related cancers,'' and other 
conditions. News of the lawsuit drew hoots of derision. But food 
industry executives aren't laughing--or shouldn't be. No matter what 
happens with Hirsch's suit, he has tapped into something very big.'').
---------------------------------------------------------------------------
    Without the benefit of traditional tort principles, both 
the steak knife and the steak itself could become historical 
artifacts. 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 foundation of tort law in personal 
responsibility, 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.'' \165\
---------------------------------------------------------------------------
    \165\ 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.\166\
---------------------------------------------------------------------------
    \166\ 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 on it below the flame; \167\ 
a person will insist on sitting in a chair \168\ or an exercise 
bicycle \169\ 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.\170\
---------------------------------------------------------------------------
    \167\ See Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975) 
(foreseeable).
    \168\ 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).
    \169\ See Dunne v. Wal-Mart Stores, Inc., 679 So. 2d 1034 (La. Ct. 
App. 1st Cir. 1996) (foreseeable).
    \170\ Compare Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 
So. 2d 953 (Ala. 1993) (unforeseeable because a 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 because a jury could properly so find); Ridenour v. 
Bat Em Out, 707 A.2d 1093 (App. Div. 1998) (foreseeable, relating to 
use of a change machine).
---------------------------------------------------------------------------

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

    Governments are generally immune from suit for failure, 
even grossly negligent or deliberate failure, to protect 
citizens from crime.\171\ Governments are similarly immune from 
suit by victims who were injured by criminals who were given 
early release on parole.\172\ Accordingly, it is inappropriate 
for the government, through the courts, to make it difficult or 
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,\173\ yet over a dozen 
studies have estimated that citizens use firearms in self-
defense between 764,000 and 3.6 million times annually.\174\ On 
January 23, 2003, for example, Baltimore Circuit Judge John 
Glynn, just seconds after defense attorneys finished their 
closing arguments, found two men not guilty in the June 30, 
2001, self-defense gun killing of a man who broke into their 
warehouse and threatened to kill them with hammer.\175\ 
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.\176\ 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.
---------------------------------------------------------------------------
    \171\ 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).
    \172\ Dennis Hevesi, ``New York is Not Liable for Murders,'' The 
New York Times (July 10, 1987).
    \173\ See H. Sterling Burnett, Nat'l Center for Pol'y Analysis, 
Suing Gun Manufacturers: Hazardous to Our Health (1999).
    \174\ 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).
    \175\ See ``How Guns Save Lives,'' The Washington Times (January 
26, 2003).
    \176\ 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.\177\ Only 
24% of the gun defenders in the study reported firing the gun, 
and only 8% reported wounding an adversary.\178\ Guns were most 
commonly used for defense against burglary, assault, and 
robbery.\179\ Also, a disproportionate share of defensive gun 
users are African-American or Hispanic compared to the general 
population.\180\
---------------------------------------------------------------------------
    \177\ 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.
    \178\ Id. at 173.
    \179\ Id. at 175.
    \180\ Id. at178.
---------------------------------------------------------------------------
    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.\181\
---------------------------------------------------------------------------
    \181\ 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.\182\
---------------------------------------------------------------------------
    \182\ 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,\183\ 
the Fifth Circuit stated that:
---------------------------------------------------------------------------
    \183\ 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.\184\
---------------------------------------------------------------------------
    \184\ 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.'' \185\
---------------------------------------------------------------------------
    \185\ 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.\186\ 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.'' \187\
---------------------------------------------------------------------------
    \186\ 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.'').
    \187\ 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.'' 
\188\
---------------------------------------------------------------------------
    \188\ 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,\189\ 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.\190\
---------------------------------------------------------------------------
    \189\ 307 U.S. 174 (1939).
    \190\ 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.'').
---------------------------------------------------------------------------

                                SUMMARY

    Congress, by passing H.R. 1036, will 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, threatening 
the right to bear arms, and setting precedents that will 
further undermine American industries and the national economy.

                                Hearings

    The Subcommittee on Commercial and Administrative Law held 
a legislative hearing on H.R. 1036 on April 2, 2003. Testimony 
was received from the following witnesses: Carlton Chen, 
General Counsel, Colt Manufacturing Company, Inc; Walter Olson, 
Senior Fellow, the Manhattan Institute; David Lemongello, 
Nutley, New Jersey; and Lawrence G. Keane, Vice President and 
General Counsel, the National Shooting Sport Foundation.

                        Committee Consideration

    On April 3, 2003, the Committee met in open session and 
ordered favorably reported the bill H.R. 1036 with amendment by 
a recorded vote of 21 to 11, a quorum being present.

                         Vote of the Committee

    1. Motion by Mr. Cannon ordering the previous question on 
the Watt Amendment, the Amendment in the Nature of a 
Substitute, and on the bill, was agreed to by a rollcall vote 
of 20 yeas, 5 nays, and 1 present.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................              X
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                                              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Ms. Sanchez.....................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             20               5               1
----------------------------------------------------------------------------------------------------------------

    2. Final Passage. The motion to report favorably the bill 
H.R. 1036, as amended, was agreed to by a rollcall vote of 21 
yeas to 11 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................                              X
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             21              11
----------------------------------------------------------------------------------------------------------------

                      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. 1036 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. 1036, 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, April 4, 2003.
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. 1036, 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 Lanette J. 
Walker (for Federal costs), who can be reached at 226-2860, 
Victoria Heid Hall (for the state and local impact), who can be 
reached at 225-3220, and Cecil McPherson (for the private-
sector impact), who can be reached at 226-2940.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1036--Protection of Lawful Commerce in Arms Act.
    H.R. 1036 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. 1036 would not 
have a significant impact on the Federal budget. Enacting the 
bill would not affect direct spending or revenues.
    H.R. 1036 would impose both an intergovernmental mandate 
and a private-sector mandate as defined in the Unfunded 
Mandates Reform Act (UMRA). The bill would prohibit 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 such claims are resolved under current 
law, plaintiffs could stand to receive significant amounts in 
damage awards. More than 30 governmental entities have such 
lawsuits pending. 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 value of damage awards) or whether 
they would exceed the annual thresholds established in UMRA for 
intergovernmental mandates ($59 million in 2003, adjusted 
annually for inflation) and for private-sector mandates ($117 
million in 2003, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for Federal costs), who can be reached at 226-2860, 
Victoria Heid Hall (for the State and local impact), who can be 
reached at 225-3220, 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 or is 
currently pending.
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 or injunctive relief 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

                        THURSDAY, APRIL 3, 2003

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 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, and pursuant to notice, I now call 
up the bill, H.R. 1036, the ``Protection of Lawful Commerce and 
Arms Act'' for purposes of markup, and move its favorable 
recommendation to the full house. Without objection the bill 
will be considered as read and open for amendment at any point.
    [The bill, H.R. 1036, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. Without objection the amendment in 
the nature of a substitute which all Members have before them 
will be considered as read, considered as the original text for 
purposes of amendment, and will be open for amendment at any 
point.
    [The amendment in the nature of a substitute follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. I now recognize myself for 5 
minutes to explain the bill. H.R. 1036 will stop ludicrous 
lawsuits against the manufacturer or seller of firearms or 
ammunition from harm resulting from the criminal or unlawful 
misuse of their products by prohibiting such lawsuits from 
being filed in State or Federal Court. Logic and fairness 
dictate that manufacturers and merchants should not be held 
responsible for the unlawful use of their lawful products.
    H.R. 1036, which has significant bipartisan support, does 
not preclude lawsuits against the person who transfers a 
firearm knowing that it will be used to commit a crime of 
violence or a drug trafficking crime. It also does not prevent 
lawsuits against the seller for negligent entrustment or 
negligence per se.
    The bill also includes several additional exceptions 
including an exception for actions in which a manufacturer or 
seller of a qualified product knowingly and willfully violates 
a State or Federal statute applicable to sales or marketing 
when such violation was the proximate cause of the harm for 
which the relief is sought.
    Other exceptions include 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.
    The amendment in the nature of a substitute clarifies that 
current cases must also be dismissed if pending in an appeals 
court. The intention of the bill is to provide for the disposal 
of all qualified actions, and this amendment does that. The 
amendment in the nature of a substitute also clarifies that the 
definition of the term ``qualified civil liability action'' 
also includes actions for injunctive relief that do not seek 
monetary damages. Actions for injunctive relief, for example, 
seek to change the way the firearms industry operates to impose 
restrictions on the number of guns that can be sold, and the 
way in which guns can be manufactured, including guns sold to 
the police and to the military. Because such actions, just as 
those for monetary damages, seek to usurp the legislative power 
and bypass consideration of these issues in a democratic 
manner, such actions should also be covered by the bill, and 
the amendment does that.
    Recent litigation against the tobacco industry has inspired 
lawsuits against the firearms industry on theories of liability 
that would hold it liable for the 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 to force firearms manufacturers into 
bankruptcy. While some of these lawsuits have been dismissed 
and some States have acted to limit them in one way or another, 
the fact remains that these lawsuits continue to be 
aggressively pursued. Lawsuits seeking to hold the firearms 
industry responsible for the criminal and unlawful use of its 
products are brazen attempts to accomplish through litigation 
what has not been achieved by legislation in the democratic 
process. Various courts have correctly described such suits as, 
quote, ``Improper attempts to have the court substitute its 
judgment for that of the legislature,'' unquote. As explained 
by another judge, quote, ``The plaintiffs' attorneys simply 
want to eliminate handguns.''
    Under the currently unregulated tort system personal injury 
lawyers are seeking to obtain through the courts stringent 
limits on the sale and distribution of firearms beyond the 
Court's jurisdictional boundaries. Such State lawsuits in a 
single county could destroy a national industry and deny 
citizens nationwide the right to keep and bear arms as 
guaranteed by the Constitution.
    Insofar as these lawsuits have the practical effect of 
burdening interstate commerce in firearms, Congress also has 
the authority to act under the Commerce Clause of the 
Constitution.
    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 the plaintiff's unconventional 
application of tort law against such a product would also apply 
to automobiles, knives and even high-calorie food. Heaven 
forbid.
    In 1999 another judge observed that cities suing the 
firearms industry, quote ``have envisioned the dawning of a new 
age of litigation during which the gun industry, the liquor 
industry and purveyors of junk food could follow the tobacco 
industry in reimbursing Government expenditures,'' unquote.
    Only a few years later a disastrous new age of litigation 
is already upon us, and even once fanciful lawsuits against 
fast food companies are proliferating. Congress must do what it 
can to stop the slide down the slippery slope. I hope this bill 
is adopted, and recognize the gentleman from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman. I ask unanimous 
consent to enter my prepared statement into the record.
    Chairman Sensenbrenner. Without objection the statement 
will be entered, and without objection all Members may insert 
opening statements in the record. Gentleman from Michigan.
    [The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
                 in Congress From the State of Michigan
    I have a number of concerns with the legislation before us.
    First, contrary to the assertions of many of the bill's proponents, 
this bill is not limited to lawsuits brought by cities against the gun 
industry for marketing to criminals. Whatever one thinks of those 
suits, Members should know that this is a very small part of this bill. 
As a matter of fact, the bill is drafted so broadly, it would even 
apply to prevent gun enthusiasts who are injured by defective guns from 
getting their day in court. In other words, the bill eliminates product 
liability lawsuits involving firearms.
    In this regard, the bill 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 protects gun 
manufacturers and sellers from liability even when they produce and 
distribute weapons that expose unassuming purchasers to unreasonable 
risks of harms. This provision is far too broad, considering the 
increasingly high number of accidents being reported that could have 
been prevented if manufacturers had adopted reasonable safety features.
    In addition, 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 exemption from 
liability 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.
    Another problem with the bill is that is shields sellers and 
manufacturers from liability even where they engage in unlawful sales. 
In other words, the bill applies to persons who sell guns in violation 
of the Brady law. For example, you can sell a gun to an individual who 
has been convicted of domestic violence and still be immune from 
liability under this bill. To me, this is not a desirable public policy 
outcome.
    Finally, the bill undermines the Supreme Court's longstanding 
interpretation of the Second Amendment to the Constitution by including 
in its findings 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.''
    HR 1036 sends the wrong message to manufacturers, dealers and other 
members of the gun industry at a time when our cities and communities 
are plagued with random acts of gun violence. I urge a no vote.

    [The statement of Mr. King follows:]
  Prepared Statement of the Honorable Steve King, a Representative in 
                    Congress From the State of Iowa
    Mr. Chairman, The issue we have before us today is of vital 
importance. Recent lawsuits against gun manufacturers and dealers are 
aimed at driving them out of business. We cannot hold gun manufacturers 
and dealers liable for the criminal acts of third parties who are 
totally beyond their control.
    I strongly support this bill which provides that lawsuits may not 
be brought against manufacturers and sellers of firearms or ammunition 
if the suits are based on criminal or unlawful use of the product by a 
third party and that existing lawsuits must be dismissed.
    I am a stalwart defender of our Second Amendment freedoms. I oppose 
any attempt to water down the principles embodied in the Second 
Amendment. The first and most important reason for the Second 
Amendment, as intended by our Founding Fathers, was to provide a 
deterrent to tyrants. The Second Amendment not only guarantees citizens 
a right to keep and bear arms for self-defense, defense of property, 
hunting and other purposes, but it was also intended as a bulwark 
against tyranny. The right to keep and bear arms was meant to ensure 
that citizens can defend our democratic republic from despots and those 
who seek to take away our rights and free society.

    [The statement of Mr. Goodlatte follows:]
Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
                  Congress From the State of Virginia
    Thank you, Mr. Chairman, for holding a markup of this important 
legislation.
    Despite the straightforward language in Article II of our 
Constitution regarding the right to bear arms, this right is the 
subject of constant bombardment by a select few.
    Targeted litigation is one way that an extreme minority can attempt 
to bring down the gun industry and thus the supply of lawful firearms 
to citizens. Recently, more than thirty cities and counties have filed 
lawsuits against the firearms industry alleging that the industry is 
liable for the actions of third parties, including those that use the 
lawful products in a criminal manner. Because of the prohibitive costs 
of defending these targeted lawsuits, the likely result of such 
litigation is that many legitimate firearms manufacturers could be 
forced to declare bankruptcy. If the courts are so allowed to decide 
the fate of gun manufacturers, then the courts will effectively be 
regulating the supply of firearms and thus the right of citizens to 
bear arms.
    However, legislatures, not courts, are the appropriate forums for 
deciding the scope of regulation for the firearms industry. Allowing 
the courts to create policy concerning these important regulatory 
matters would surely violate separation of powers principles.
    HR 1036, the Protection of Lawful Commerce in Arms Act, would 
prevent plaintiffs from bringing certain civil actions against firearms 
manufacturers and sellers for the criminal or unlawful misuse by third 
parties of properly made firearms. This bill will help to put an end to 
judicial legislating in the firearms field. It will also serve as an 
important statement that responsibility for wrongdoing should rest with 
the wrongdoer.
    As Oliver Wendell Holmes stated in an 1894 Harvard Law Review 
article, ``. . . 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 principal 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 . . .''
    Thirty-one states have enacted legislation to prevent junk lawsuits 
against the firearms industry based on the criminal behavior of others. 
Thirty-one states have thus declared that the responsibility for 
wrongdoing should rest with wrongdoers. Congress should follow the lead 
of the states and enact HR 1036 into law.

    Mr. Conyers. And I would like now to yield to the Ranking 
Member of the Subcommittee, the gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman, and Ranking Member.
    Let me just make several points. First of all, this bill 
came to the Subcommittee yesterday for a hearing. We got the 
statements of two of the witnesses who were testifying late in 
the evening night before last, one yesterday morning at the 
time of the hearing. The bill has had no markup in the 
Subcommittee, and so I think there is a substantial concern 
about whether the Committee and/or Subcommittee has done an 
adequate job of looking at the language of such a sweeping 
piece of legislation, whether the--whether it's a good idea or 
not.
    There is also substantial concern about the timing of 
this,and our concern is that the bill is being pushed and 
rushed at this time, not for substantive reasons but for 
political reasons because it just so happens that a couple of 
weeks from now the NRA's national convention is being held, 
and--or 3 weeks from now the NRA's national convention is being 
held, and so there's some question about whether this is really 
a substantive effort or whether it is a political effort.
    Timing issues aside, let me address the substance of the 
bill. First of all, the bill is based on findings that one can 
only characterize as a political dream world. They certainly 
are not findings that are substantiated in any way by a hearing 
record, nor are they findings that are substantiated in any way 
by what any court has determined to be the state of the law and 
what the Second Amendment says. For example, the second finding 
or the first finding in the findings in the bill talks about 
the right that is protected by the Second Amendment to the 
United States Constitution of citizens to keep and bear arms. 
That would be great, except that there's simply no court that 
has ever substantiated that that's what the Second Amendment 
means. And so we've made maybe an aspirational finding that 
some of my colleagues would like to have as a basis for passing 
this legislation, but certainly not a finding of fact that any 
court has ever substantiated, and it does seem to me that if 
there's any place in this body called the Congress, the House 
of Representatives, that has an obligation to take the oath 
that each Member of this Congress takes seriously to uphold and 
defend the Constitution of the United States, if there is any 
place that that oath ought to have any integrity, it ought to 
be the Judiciary Committee of this House.
    And so to adopt a piece of legislation based on erroneous 
findings, based on erroneous statements about what the 
Constitution says, just seems to me to be a political fanciful 
world that we are living in.
    Finally----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Watt. As had the Chairman when I walked in the room, 
and I was here 3 minutes before the Chairman stopped. I ask 
unanimous consent for three additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. I would just say related to the drafting of this 
bill, based on what the witnesses at the hearing yesterday said 
the purpose of the bill was, the bill goes well, well, well 
beyond any of those purposes, and creates some issues that I 
think have not been well thought out or researched, and while 
we will try to address some of those issues today, I think we 
are just doing everybody a disservice in trying to rush to a 
markup and favorable reporting of this bill for what appears to 
be more a political reason than any kind of--based on any kind 
of substantive merit that the bill may have.
    I thank the Chairman for his generosity in yielding 
additional time, and I'll yield back.
    Chairman Sensenbrenner. Are there amendments----
    Mr. Conyers. Mr. Chairman, I have an amendment.
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 1036 offered by Mr. Conyers. 
Page 6, line 9, after ``manufacturer'' add ``user.''
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Conyers. Chairman, I rise in support of the amendment 
which merely expands the scope of the bill to cover users of 
firearms as well as manufacturers. If we're going to insulate 
people from negligent actions, I think we need to consider 
extending the protection not just to sellers but to all users 
of firearms.
    And so my amendment would flow with the proposal and 
interpretations of the Second Amendment that I heard yesterday 
at the Committee.
    If we're going to insulate gun sellers from liability, 
should we not insulate gun users? After all, they can be 
harassed by frivolous suits just as well. If the Second 
Amendment means what I've been told it means in this Committee, 
it should mean the freedom from all negligence suits. Now, I 
think it can be argued that we already have the full force of 
the criminal laws to crack down on persons who misuse handguns. 
Some might think it a waste of time and resources to involve 
our courts in civil actions against gun users, and so I hope 
that my amendment will be adopted by a majority of Members in 
this Committee.
    And I return any unused time.
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes in opposition to the amendment. Valentine's Day was 
almost 2 months ago, and this amendment I think is attempting 
to love this bill to death. Perhaps the Postal Service has been 
a little bit slow in delivering the valentines from the 
gentleman from Michigan.
    But what the amendment does is it turns tort law on its 
head because it prohibits a lawsuit against a user of a legal 
product for negligence. This is grossly overreaching. I don't 
think that the intent of the bill is to do that. The intent of 
the bill is to prevent people from suing manufacturers when 
someone else uses a firearm in a criminal manner. I would hope 
that the amendment would be voted down, and yield back the 
balance of my time.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. Thank you, Mr. Chairman. I'm going to rise in 
opposition to the amendment too, not because--I think, as my 
mother used to say, two wrongs don't make a right. The 
underlying bill is a wrong. The amendment would be an 
additional wrong. While I understand the reason for the 
gentleman offering it, the underlying bill is just as 
ridiculous in many respects as the amendment that's being 
offered. I'm not--I'm going to resist the temptation to join in 
my colleague's effort to make fun of this bill in this way. 
This is not fun and games in which we are operating.
    As we heard yesterday from one of the witnesses, a former 
police officer who had been attacked and shot by a gun that--
and would have his lawsuit eviscerated by this legislation. 
This is not a joking matter. Guns are not joking matters. And I 
think we have an obligation to respect the use of guns by 
people who are using them for legitimate purposes, but we also 
have a right to expect a level of responsibility on the part of 
manufacturers, designers, sellers, and users of guns, and I 
think the current state of the law has developed a reasonable 
balance. It needs some tinkering. Maybe some of the gun laws 
need to be retooled in some way, but I don't think a massive 
change in the tort standards, in the liability standards in 
this country is what is called for at this time.
    Mr. Conyers. Would the gentleman yield to me?
    Mr. Watt. I'm happy to yield to my friend.
    Mr. Conyers. I'm discouraged by the nonenthusiasm of the 
Ranking Member, but if I could consult with the NRA leader, 
Chuck Cunningham, about this amendment, and see what he feels 
about it, I would feel a lot better about that.
    Where's Chuck? What do you think?
    Chairman Sensenbrenner. Well, the Chair will rule that out 
of order because this is a markup where----
    Mr. Conyers. You can give me a thumbs up, Chuck, if it's 
okay.
    Chairman Sensenbrenner.--only Members of the Committee can 
participate. If the gentleman from Michigan and Mr. Cunningham 
want to meet in the hallway, they're perfectly welcome to do 
so.
    Mr. Conyers. Well, I thank----
    Mr. Cannon. Mr. Chairman, no guns in that meeting, right?
    Chairman Sensenbrenner. Brass knuckles perhaps.
    Mr. Watt. Well, I think this exchange kind of illustrates 
the mockery that we are making of this process. The bill itself 
is a mockery. We want to treat this subject as fun and games, 
but it's not. And I think we are doing ourselves a disservice. 
I think we are doing the Judiciary Committee a disservice to 
pass a bill out of here that has findings in it that everybody 
sitting on this Committee knows are just outrageous and wrong 
and inconsistent with what the courts have said the 
Constitution means, and inconsistent with what it has meant 
throughout the history of this country. We are making a mockery 
of ourselves and this process in my opinion. And we can sit 
here and joke about it. We can make light of it. But I tell 
you, there's nothing worse than seeing some victim of gun 
violence to make you understand how serious this bill is, and 
the notion that we could talk about taking away----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Conyers. Would the gentleman yield?
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Watt. I ask unanimous consent for one additional 
minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. I yield to the gentleman.
    Mr. Conyers. I thank the distinguished Ranking Member of 
the Subcommittee.
    Mr. Chairman, I withdraw this amendment.
    Chairman Sensenbrenner. The amendment is withdrawn. Are 
there further amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose the gentlewoman 
from Texas seek recognition?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Jackson Lee. No. 13 if that's how it's recorded, or No. 
1 Jackson Lee.
    The Clerk. Mr. Chairman, I don't have an amendment from Ms. 
Jackson Lee.
    Chairman Sensenbrenner. There is no amendment from Ms. 
Jackson Lee. Are there further amendments? Gentleman from North 
Carolina, for what purpose do you seek recognition?
    Mr. Watt. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Watt. Let me just make sure I know which one. Let's do 
Watt No. 2.
    Chairman Sensenbrenner. The clerk will report Watt 2.
    The Clerk. Mr. Chairman, I don't have Mr. Watt's amendment.
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Watt. We're getting ready to correct that problem, Mr. 
Chairman. It's right there.
    Chairman Sensenbrenner. There are no further amendments. 
The question----
    Mr. Watt. I have an amendment at the desk, Mr. Chairman.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 1036 offered by Mr. Watt. Page 1, line 10, 
after ``manufacturers'' strike ``distributors, dealers and 
importers.'' Page 1----
    Chairman Sensenbrenner. Without objection the amendment 
is----
    Mr. Watt. I object.
    Chairman Sensenbrenner. The clerk will continue to read.
    The Clerk. Page 1, line 15, after ``manufacture'' strike 
``importation, possession, sale and use.''
    Page 2, line 5, after ``design'' strike the comma and 
insert ``and.''
    Chairman Sensenbrenner. Without objection the----
    Mr. Watt. I object.
    Chairman Sensenbrenner. The clerk will continue to read.
    The Clerk. Page 2, line 5, after ``manufacture'' strike all 
that follows through the word ``public'' on line 6.
    Page 2, line 13 through----
    Mr. Cannon. Mr. Chairman, point of order.
    Chairman Sensenbrenner. Gentleman from----
    Mr. Cannon. If the other side needs time to prepare their 
amendments, could we take a 5-minute recess of something 
instead of going through this charade of reading a long----
    Chairman Sensenbrenner. Well, that is not a valid point of 
order. Does the gentleman ask unanimous consent for a 5-minute 
recess?
    Mr. Cannon. I do.
    Chairman Sensenbrenner. Without objection the Committee 
will be recessed for 5 minutes.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. 
Pending at the time of the recess was an amendment to the 
amendment in the nature of a substitute offered by the 
gentleman from North Carolina, Mr. Watt.
    The clerk will continue to read.
    The Clerk. Page 2, lines 13 and 14, strike ``on an entire 
industry'' and insert ``firearm''----
    Mr. Cannon. Mr. Chairman, I ask unanimous consent that 
reading be----
    Mr. Watt. Objection.
    Chairman Sensenbrenner. Clerk will continue to read.
    The Clerk.--``and ammunition manufacturers.''
    Page 3, line 18, strike ``distributors, dealers and 
importers.''
    Page 3, line 20, strike ``or unlawful.''
    Page 4, line 11, after ``manufacturers'' strike the comma 
and all that follows through ``associations'' on line 13.
    Page 5, line 6, after ``Code'' strike the comma and all 
that follows through ``ammunition'' on line 11.
    Page 6, lines 10 through 11, strike ``or seller of a 
qualified product or a trade association.''
    Page 6, line 12, strike ``or unlawful.''
    Page 6, strike lines 15 through 23.
    Page 6, line 24, strike ``(iii)'' and insert ``(i)''.
    Page 6, line 25, strike ``or seller of.''
    Page 7, lines 2 through 3, strike ``sale or marketing'' and 
insert ``design or manufacturer.''
    Page 7, line 6 strike ``(iv)'' and insert ``(ii)''.
    Page 7, line 9, strike ``(v)'' and insert ``(iii)''.
    Page 7, strike line 13 and all that follows through page 8, 
line 18.
    Page 8, line 19, strike ``(7)'' and insert ``(6)''.
    Page 9, strike line 3 and all that follows.
    [The amendment follows:]

    
    
    Chairman Sensenbrenner. The gentleman from North Carolina's 
recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. I would just say to the 
Members of the Committee, I had this read in an effort to 
return us to a serious deliberation about this bill, and 
contrary to what my friend, Mr. Cannon suggested, in an effort 
to make sure that you all read what I had written and what was 
being proposed and that somebody understood it, not that I had 
read it. I had already read it many times.
    The reason I offer this amendment is because based on all 
of the testimony that was offered at the hearing yesterday, 
this is what the witnesses said the bill was designed to do. 
The bill, as it's drawn, applies to manufacturers, 
distributors, sellers, dealers, importers, the whole range of 
people involved in the gun distribution industry. The effect of 
this amendment would be to limit the immunity that this bill 
gives to manufacturers only. And if that's what the purpose 
that was set out to accomplish was, and that's what all of the 
testimony yesterday suggested, then I think--and if we're going 
to have a serious deliberation about the merits or lack of 
merits of this bill, then I think it needs to be in the context 
of this amendment, because as we submitted evidence yesterday 
and illustrated there is substantial irresponsible conduct 
being--taking place on the part of sellers and dealers in this 
industry.
    The manufacturers have in fact done a reasonably good job 
of trying to, some of them, trying to respond to the danger of 
the instruments that they produced and put into the 
marketplace. Some of them have adopted the notion of trigger 
locks and safety locks and the high-tech kinds of things. They 
are trying to make an effort to make their products safer, and 
when kids get them, not to have them injured and killed, and 
even when criminals get them, not to have them injured and 
killed.
    But there are sellers and dealers in this industry who have 
been completely irresponsible, and the GAO report that I'm 
getting ready to submit for the record, and I ask unanimous 
consent to submit it, indicates----
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]

    
    
    Mr. Watt.--time after time after time where sellers and 
dealers of these instruments have exercised absolutely no 
responsibility. And so if you're going to try to reward the 
people who are trying to do right by doing something good for 
them, then this amendment is the context in which it ought to 
be done because it limits the application of this bill solely 
to the manufacturers, and they are the ones--and some of them 
haven't gone as far as I would like either--but some of them 
are trying to make some responsible steps and be responsive to 
the public. And if there's a justification for doing any of 
this--and I don't think there is--but if there is, it ought to 
be done in the context of this amendment because that's what 
all the testimony yesterday was designed to strike at, and so 
if you are serious about this, rather than simply wanting to 
make a joke of it and make our institution a mockery, then what 
I would suggest is that we get together and have a bill which 
we could spend some time actually talking about, and instead of 
making a unanimous consent not to even read what we're looking 
at, let's get serious and roll up our sleeves and try to do 
something responsible. I yield back.
    Mr. Cannon. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Utah.
    Mr. Cannon. Mr. Chairman, I move the previous question on 
the amendment, the amendment in the nature of a substitute and 
the bill.
    Chairman Sensenbrenner. The motion is nondebatable. Those 
in favor of ordering the previous question on the amendment, 
the amendment in the nature of a substitute, and the bill will 
say aye.
    Opposed no.
    The ayes appear to have it.
    Mr. Scott. rollcall.
    Chairman Sensenbrenner. rollcall is ordered. Those in favor 
of ordering the previous question on the amendment, the 
amendment in the nature of a substitute, and the bill, 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. 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?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    [No response.]
    The Clerk. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, 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?
    Mr. Watt. Present.
    The Clerk. Mr. Watt, present. 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?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their votes? Gentleman from Arizona, 
Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Chairman Sensenbrenner. Gentleman from Alabama, Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. Gentleman from Florida, Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye.
    Chairman Sensenbrenner. Gentlewoman from Tennessee, Mrs. 
Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their vote? If not, the clerk will 
report.
    The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye.
    Mr. Chairman, there are 20 ayes, 5 noes and one voting 
present.
    Chairman Sensenbrenner. And the previous question is 
ordered. The question is on agreeing to the amendment offered 
by the gentleman from North Carolina, Mr. Watt. Those in favor 
will say aye.
    Those opposed no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    The question is now on agreeing to the amendment in the 
nature of a substitute offered by the----
    Mr. Scott. Parliamentary inquiry.
    Chairman Sensenbrenner. State your parliamentary inquiry.
    Mr. Scott. What was the last vote, prior to this one that 
we voted on?
    Chairman Sensenbrenner. The previous question.
    Mr. Scott. On what?
    Chairman Sensenbrenner. The amendment, the amendment in the 
nature of a substitute, and ordering the bill reported.
    Ms. Jackson Lee. I have an amendment at the desk.
    Mr. Scott. What is the pending question?
    Chairman Sensenbrenner. The pending question now is on the 
agreeing to the amendment in the nature of a substitute offered 
by the Chair. Those in favor will say aye.
    Opposed no.
    The ayes appear to have it. The ayes have it. The amendment 
in the nature of a substitute is agreed to. The question is now 
on reporting the bill----
    Ms. Jackson Lee. Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The previous question has been 
ordered. An amendment in the nature of a substitute has already 
been adopted. No more amendments are in order.
    The question----
    Mr. Watt. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The previous question has been 
ordered. No more debate is in order.
    The question is on ordering the bill reported favorably as 
amended. Those in favor will say aye.
    Those opposed no.
    A reporting quorum is present. The ayes appear to have it.
    Mr. Scott. rollcall.
    Chairman Sensenbrenner. rollcall is requested. The question 
is on reporting the bill favorably as amended by 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. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. 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?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt, no. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Ms. Baldwin?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional Members in the 
chamber who wish to cast or change their votes? Gentleman from 
Arizona, Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 21 ayes and 11 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection the Chairman is authorized to 
move to go to conference pursuant to House rules. The business 
before this Committee----
    Ms. Jackson Lee. Mr. Chairman, a parliamentary inquiry?
    Chairman Sensenbrenner. The gentlewoman will state her 
parliamentary inquiry.
    Ms. Jackson Lee. Is it the rule of this Committee for the 
majority to be so singularly partisan that they would deny the 
opposition the right to offer amendments?
    Chairman Sensenbrenner. That is not a proper parliamentary 
inquiry.
    Ms. Jackson Lee. The right to offer amendments? Shame on 
you all. It's a disgrace.
    Chairman Sensenbrenner. That is not a proper parliamentary 
inquiry.
    Ms. Jackson Lee. Thank you, Mr. Chairman. It's a disgrace. 
This Committee is a disgrace.
    Chairman Sensenbrenner. Well, if the gentlewoman wishes to 
resign, she can send her resignation to the speaker. 
[Laughter.]
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The business that has come before 
this Committee has been concluded, and the Committee stands 
adjourned.
    [Whereupon, at 10:44 a.m., the Committee was adjourned.]

                            Dissenting Views

    The undersigned oppose H.R. 1036, the ``Protection of 
Lawful Commerce in Arms Act,'' and strenuously object to the 
process by which it was adopted by the Committee. The maneuvers 
employed by the Majority to quell dissent of its special 
interest legislation are all too transparent and occurring with 
alarming frequency in this Committee. The partisan manner in 
which this bill was rushed through the Committee constitutes a 
major disservice to the American public who expect their 
representatives to engage in a deliberative effort when 
constructing legislation of such magnitude.
    H.R. 1036 was noticed for a legislative hearing in the 
Subcommittee on Commercial and Administrative law. The hearing 
was held on April 2, 2003, 1 day prior to the markup in the 
Full Committee. The Subcommittee process did not lend itself to 
a thorough consideration of the bill given that two of the 
three witnesses invited by the Majority submitted their 
testimony late. The testimony of one witness was submitted 
under an hour before the hearing began. Notwithstanding the 
tardiness of the testimony, the interest of the Minority in 
fully exploring the ramifications of the bill was eminently 
evident at the Subcommittee hearing. Both the Ranking Member of 
the Full Committee, Mr. Conyers, and the Ranking Member of the 
Subcommittee on Crime, Mr. Scott, attended and actively 
participated in the Subcommittee hearing. Moreover, at the 
request of the Minority, members were granted unanimous consent 
to propound additional questions in writing to the panel of 
witnesses--the answers to which will have no bearing on 
Members's evaluation of the bill which is already scheduled for 
consideration on the Floor.
    The Full Committee markup provided even less process for 
Members of the Minority to exercise their right as 
representatives to participate in the drafting of comprehensive 
legislation that may affect the vested interests of many of 
their constituents. After one Democratic amendment had been 
offered and withdrawn, and during the pendency of only the 
second Democratic amendment offered by Mr. Watt, the Ranking 
Member of the Subcommittee from which the bill originated, the 
Majority cut off debate by moving the previous question on the 
amendment, the amendment in the nature of a substitute, and the 
bill. Mr. Watt's amendment was based upon the testimony 
received before the Subcommittee which suggested a lack of 
nexus between the design and manufacturing of a gun that was 
criminally used to injure or kill another. The amendment would 
have immunized manufacturers from such liability, while 
permitting negligence actions against sellers, dealers, and 
distributors to proceed.
    Despite the substance of the amendment, the Majority--
apparently angered by Mr. Watt's insistence, as was his right, 
that the amendment (which was a little over one page) be read 
\1\--moved the previous question. The bill was then reported, 
without any objection from the Majority, even though 
approximately one dozen substantive Democratic amendments were 
awaiting consideration.\2\ The dispatch with which the Majority 
scheduled this bill for a hearing, markup, and Floor 
consideration lends credence to the conjecture that passage of 
H.R. 1036 is less about remedying a perceived boom of frivolous 
lawsuits as it is delivering a pro-gun bill in advance of the 
NRA's late April annual convention. We object to the 
``process'' and delineate our substantive concerns below.
---------------------------------------------------------------------------
    \1\ Mr. Watt explained: ``I would just say to the members of the 
committee, I had this read in an effort to return us to a serious 
deliberation about this bill, and . . . in an effort to make sure that 
you all read what I had written and what was being proposed. . . .'' 
Transcript, Markup of H.R. 1036, the ``Protection of Lawful Commerce in 
Arms Act,'' Thurs., Apr. 3, 2003 (House of Representatives Committee on 
the Judiciary), at p. 21.
    \2\ In addition to several other amendments by Mr. Watt, at least 
four other Democrats, including Mr. Conyers, Mr. Scott, Ms. Lofgen, Ms. 
Jackson Lee, had amendments at the desk waiting to be offered.
---------------------------------------------------------------------------

                       I. BACKGROUND AND SUMMARY

    H.R. 1036, the ``Protection of Lawful Commerce in Arms 
Act'' prohibits civil liability actions from being brought or 
continued (the bill applies to pending cases) against 
manufacturers, distributors, dealers, or importers of firearms 
or ammunition for damages resulting from the ``criminal or 
unlawful misuse'' of their products by the injured party or 
others. The bill, which was introduced on February 27, 2003, 
and referred to the Judiciary Committee is similar to two bills 
introduced during the 107th Congress. H.R. 123, the ``Firearms 
Heritage Protection Act of 2001'' was introduced by Rep. Bob 
Barr in January 2001 with 62 co-sponsors and referred to the 
Judiciary Committee. No action was taken on the bill. H.R. 
2037, the ``Protection of Lawful Commerce in Arms Act'' was 
introduced by Rep. Cliff Stearns in May 2001 and referred to 
the House Energy and Commerce and Judiciary Committees. H.R. 
2037 was marked up in both House Committees, reported out and 
placed on the Union Calendar in early October 2002.
    Days after H.R. 2037 was placed on the House calendar, the 
Washington, DC area was besieged by a sniper(s) who 
indiscriminately gunned down innocent victims with a high 
caliber rifle. In the aftermath of the sniper shooting, no 
further action was taken on the bill last term. H.R. 1036, like 
its predecessor, however, would eviscerate actions by survivors 
of victims of the Beltway sniper now pending against segments 
of the gun industry for negligent distribution of the 
Bushmaster rifle used in the killings.
    Over the past few years, more than thirty-four governmental 
entities have filed suit against gun manufacturers, 
distributors and trade associations in an attempt to bring to 
an end marketing and distribution schemes that place guns in 
the hands of criminals. Relying on public nuisance theories and 
claims of product liability violations, these various 
municipalities targeted the gun industry for displaying an 
utter indifference to the safety of their communities and 
cities through their faulty design and selling of guns. During 
the last term of Congress, of the thirty-four suits, eighteen 
had won favorable rulings on the legal merits of their claims; 
five were battling motions to dismiss; four had their claims 
dismissed; and seven ended without success.
    H.R. 1036, as was its predecessors, was introduced 
presumably in response to these lawsuits. The bill prohibits 
civil actions from being brought against manufacturers or 
distributors of firearms or ammunition products, or trade 
associations of such manufacturers or distributors, for damages 
resulting from the criminal or unlawful misuse of a firearm by 
the injured person or by a third party. The bill further 
requires the dismissal of any action encompassed by the bill 
pending on the date of the bill's enactment. Under the specific 
terms of the bill, only five specified causes of action would 
be permissible against protected members of the gun industry. 
They are (1) transfers where the transferor has been convicted 
of violating Section 924(h) of title 18; (2) actions alleging 
negligent entrustment (as defined in the bill) or negligence 
per se; (3) actions alleging knowing and willful violation of a 
Federal or State law relating to the sale or marketing of the 
product, where the violation was the proximate cause of the 
harm; (4) breach of contract or warranty claims; and (5) 
actions for physical injury or property damage directly due to 
the design or manufacturer of the product, when used as 
intended.\3\
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    \3\ H.R. 1036, Sec. 4. DEFINITIONS, (5) Qualified civil liability 
action.--(A)(i)-(v), at pp. 7-8 (emphasis added).
---------------------------------------------------------------------------

                    II. SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title. ``Protection of Lawful Commerce in Arms Act''.
Sec. 2(a). Findings. Sets forth legislative findings in support of this 
        title. The key findings are as follows:
    (1) Citizens have a right, under the Second Amendment to 
the U.S. Constitution, to keep and bear arms.
    (2) Lawsuits have been commenced against manufacturers, 
distributors, dealers, and importers of firearms that operate 
as designed and intended seeking money damages and other relief 
for the harm caused by the misuse of firearms by third parties.
    (3) The manufacture, importation, possession, sale, and use 
of firearms and ammunition in the U.S. is heavily regulated by 
Federal, State and local laws.
    (4) Businesses engaged in 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 that 
function as designed and intended.
    (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 in our 
Nation's laws, threatens the diminution of a basic 
constitutional right and civil liberty, 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 
governmental entities and private interest groups are based on 
theories without foundation in hundreds of years of the common 
law and American jurisprudence. The possibility that a 
``maverick'' judge or jury would sustain these actions would 
constitute an expansion of civil liability in a manner never 
contemplated by the Framers of the Constitution. Finally, 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 U.S. 
Constitution.
    (b) Purposes. Outlines the purposes of the Act which 
include: (1) prohibiting causes of actions against 
manufacturers, distributors, dealers, and importers of firearms 
or ammunition products for harm caused by third parties when 
the product functioned as designed and intended; (2) preserving 
citizen access to firearms and ammunition for lawful purposes; 
(3) guaranteeing a citizen's rights, privileges, and immunities 
under the Fourteenth Amendment to the U.S. Constitution; (4) 
preventing the use of such lawsuits to impose unreasonable 
burdens on interstate and foreign commerce; and (5) protecting 
the First Amendment rights of manufacturers, distributors, 
dealers, and importers of firearms or ammunition products, and 
trade associations to speak freely, assemble peaceably, and 
petition the Government for redress of their grievances.
Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions in 
        Federal or State Court.
    (a) In General. This provision prohibits any person from 
bringing a ``qualified civil liability action'' in any Federal 
or State court.
    (b) Dismissal of Pending Actions. This provision requires 
courts to dismiss any ``qualified civil liability'' action 
wherever pending on the date of enactment of this Act.
Sec. 4. Definitions.
    (1) Engaged in the Business. Defines the term ``engaged in 
the business'' as that provided in section 921(a)(21) of title 
18, U.S.C., 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 
principled objective of livelihood through the sale or 
distribution of ammunition.'' \4\
---------------------------------------------------------------------------
    \4\ 18 U.S.C. Sec. 921(a)(21)(A)-(F) defines the term `engaged in 
the business'' as it relates to (a) a manufacturer of firearms; (b) a 
manufacturer of ammunition; (c)a dealer in firearms as defined in 
921(a)(11)(A), i.e., ``any person engaged in the business of selling 
firearms at wholesale or retail''; (d) a dealer in firearms as defined 
in 921(a)(11)(B), i.e., ``any person engaged in the business of 
repairing firearms or the making or fitting special barrels, stocks, or 
trigger mechanisms to firearms''; (e) an importer of firearms; and (f) 
an importer of ammunition in identical terms as that provided in H.R. 
1036 as it relates to a seller of ammunition. 921(a)(21) does not 
include in its definition of ``engaged in the business,'' a dealer in 
firearms as defined in 921(a)(11)(C), who is a pawnbroker.
---------------------------------------------------------------------------
    (2) Manufacturer. Defines ``manufacturer'' as (a) a person 
engaged in a business of manufacturing the product in 
interstate or foreign commerce and (b) who is licensed to 
engage in such business under chapter 44 of title 18, U.S.C.
    (3) Person. Defines the term ``person'' as any individual, 
corporation, company association, firm, partnership, society, 
joint stock company, or any other entity, including any 
governmental entity.
    (4) Qualified Product. Defines a ``qualified product'' as a 
firearm (defined in Section 921(a)(3) of title 18) including 
any antique firearm (defined in Section 921(a)(16) of title 
18), or ammunition (defined in section 921(a)(17) of title 18), 
or a component of either that has been shipped in interstate or 
foreign commerce.
    (5) Qualified Civil Liability Action.1 (A) IN GENERAL: 
Defines a ``qualified civil liability action'' as an action 
brought by any person against a manufacturer or seller of a 
qualified product, or trade association, for damages resulting 
from the ``criminal or unlawful misuse of a qualified product 
by the person or a third party.'' Excluded from the definition 
are (1) transfers where the transferor has been convicted of 
violating Section 924(h) of title 18; (2) actions alleging 
negligent entrustment or negligence per se; (3) actions 
alleging knowing and wilful violation of a Federal or State law 
relating to the sale or marketing of the product, where the 
violation was the proximate cause of the harm; (4) breach of 
contract or warranty claims; and (5) actions for physical 
injury or property damage directly due to the design or 
manufacture of the product when used as intended. (B) NEGLIGENT 
ENTRUSTMENT: Defines the term ``negligent entrustment'' as the 
provision of a qualified product by a seller to another person 
when the seller knows or should have know that the person to 
whom the product was provided is likely to, and in fact does, 
use the product in a manner involving unreasonable risk of 
physical harm to others.
    (6) Seller. Defines a ``seller'' of a qualified product as 
(a) an importer (as defined in 921(a)(9), title 18 U.S.C.) 
licensed pursuant to chapter 44 of title 18 to engage, and is 
so engaged, in the business of an importer in interstate or 
foreign commerce; (b) a dealer (as defined in 921(a)(11), title 
18 U.S.C.\5\), licensed under chapter 44 of title 18 to engage, 
and is so engaged, in business as a dealer in interstate or 
foreign commerce; and (c) a person engaged in the business of 
lawfully selling ammunition (as ``ammunition'' is defined in 
921(a)(17), title 18, U.S.C.\6\) in interstate or foreign 
commerce at the wholesale or retail level.
---------------------------------------------------------------------------
    \5\ Under this section, a seller would include a pawnbroker as 
defined in 921(a)(11)(C), title 18, U.S.C.
    \6\ Ammunition covered by this bill as defined by 18 U.S.C. 
Sec. 921(a)(17) includes ``ammunition or cartridge cases, primers, 
bullets, or propellent powder designed for use in any firearm'' and 
``armor piercing ammunition.'' Armor piercing ammunition, as defined in 
section 921, includes projectiles, projectile cores or full jacketed 
projectiles larger than .22 caliber which may be used or which are 
designed and intended to be used in a handgun. Section 921 further 
provides, however, that

      `armor piercing ammunition' does not include shotgun shot 
      required by Federal or State environmental or game 
      regulations for hunting purposes, a frangible projectile 
      designed for target shooting, a projectile which the 
      Secretary finds is primarily intended to be used for 
      sporting purposes, or any other projectile or projectile 
      core which the Secretary finds is intended to be used for 
      industrial purposes, including a charge used in an oil and 
---------------------------------------------------------------------------
      gas well perforating device.

18 U.S.C. Sec. 921(a)(17)(C) (emphasis added).
    (7) State. Defines a ``state'' as any of the several States 
of the U.S., the District of Columbia, any U.S. territory, or 
other possession of the U.S. and any political subdivisions 
thereof.
    (8) Trade Association. Defines a ``trade association'' as 
any association or organization, whether incorporated or not, 
that is not operated for profit and whose members consist of 
two or more manufacturers or sellers of a qualified product.

                          III. POLICY CONCERNS

  A. THE BILL IMMUNIZES GUN MANUFACTURERS AND SELLERS FROM LIABILITY 
            UNDER MOST NEGLIGENCE AND COMMON LAW PRINCIPLES.

    Under current law, a gun dealer may be liable for shootings 
using guns negligently sold to a trafficker, for example, where 
the dealer sold 50 or 100 guns to a person who clearly intended 
to resell them to criminals.\7\ Under H.R. 1036, these dealers 
would be immunized from liability, despite their negligent 
conduct. Victims of gun industry misconduct would also be 
denied a remedy under public nuisance law. Only in the narrow 
class of cases enumerated in Section 4 of the bill (e.g., when 
a dealer knowingly transferred a gun to someone despite knowing 
it would be used to commit a crime of violence or a drug 
trafficking crime, or when the dealer negligently entrusted the 
gun to a shooter, or a plaintiff files a negligence per se 
case) would plaintiffs be permitted to seek relief for their 
foreseeable injuries. H.R. 1036 would even immunize from 
liability gun dealers found guilty of violating most Federal 
gun laws (except 18 U.S.C. 924(h)), unless such violation was 
knowing and wilful and was the proximate cause of the harm for 
which relief is sought.
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    \7\ Former police officer, David Lemongello, who testified at the 
subcommittee hearing upon the recommendation of the Ranking Member, 
Melvin Watt, is presently engaged in litigation alleging such a ``sham 
purchase.'' Officer Lemongello and his partner were severely injured in 
a shootout by a gun that had been purchased by a criminal in a bulk, 
cash sale of 12 firearms.
---------------------------------------------------------------------------

B. THE BILL DISCOURAGES GUN MANUFACTURERS FROM ADOPTING PRODUCT SAFETY 
                             ENHANCEMENTS.

    Under existing product liability law in most States, 
manufacturers must include feasible safety devices that would 
prevent injuries caused when their products are foreseeably 
misused, regardless of whether the victim's injury also was 
caused by the unlawful conduct of the victim or a third party. 
H.R. 1036 discourages gun manufacturers from adopting 
reasonable design safety enhancements such as ``gun locks'' or 
safety triggers by substantially limiting the type and scope of 
permissible product liability actions. Under this bill, gun 
manufacturers face no liability for failing to implement safety 
devices that would prevent foreseeable injuries, provided the 
individual who possessed the gun was a child or some other 
person not permitted to possess a gun. This ``unlawful use'' 
under the bill would insulate the manufacturer from avoidable 
accidental injury.

C. THE BILL UNDERMINES THE SUPREME COURT'S LONGSTANDING INTERPRETATION 
           OF THE SECOND AMENDMENT TO THE U.S. CONSTITUTION.

    As part of the bill's findings, Section 2 of the bill 
declares that ``[c]itizens have a right, protected by the 
Second Amendment to the United States Constitution, to keep and 
bear arms''. This blanket statement is made absent any 
qualification and ultimately undermines the plain language 
wording of the Second Amendment which describes the right in 
relation to ``a well regulated militia, being necessary to 
security of a free State.'' \8\ Regrettably, it also disregards 
over sixty years of U.S. Supreme Court precedent that has 
interpreted the right to bear arms to exist based upon ``some 
reasonable relationship to the preservation or efficiency of a 
well regulated militia.'' \9\
---------------------------------------------------------------------------
    \8\ U.S. Const. Amend II.
    \9\ U.S. v. Miller, 307 U.S. 174, 178 (1939). Mr. Scott, Ranking 
Member of the Subcommittee on Crime, was deprived of an opportunity to 
offer an amendment which would have addressed the fallacy of this 
finding. Indeed, in Miller, the Supreme Court declared that the Second 
Amendment right ``to keep and bear Arms'' applies only to the right of 
the State to maintain a militia and not to the individual's right to 
bear arms. More specifically, the Court stated that the ``obvious 
purpose'' of the Second Amendment was ``to assure the continuation and 
render possible the effectiveness'' of the State militia and that the 
amendment ``must be interpreted and applied with that end in view.'' 
Thus, the Second Amendment does not protect individual ownership of 
guns and does not constitute a barrier to Congressional regulation of 
firearms.
---------------------------------------------------------------------------

D. THE NARROW EXCEPTIONS IN H.R. 1036 WILL NOT PROTECT MOST VICTIMS OF 
                        GUN INDUSTRY NEGLIGENCE.

    H.R. 1036 would deprive gun violence victims of their legal 
rights in cases involving a wide range of industry misconduct. 
The bill generally prohibits any 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 radically rewrites well-accepted principles of 
liability law, which generally hold that persons and companies 
may be liable for the foreseeable consequences of their 
wrongful acts, including the foreseeable criminal conduct of 
others.
    The New Mexico Court of Appeals recently wrote in a case 
involving an accidental shooting by a teenager that 
``[s]uppliers are responsible for risks arising from 
foreseeable uses of the product, including reasonably 
foreseeable unintended uses and misuses.'' In the last 2 years 
alone, the Supreme Court of Ohio \10\, and appeals courts in 
New Mexico \11\, Illinois \12\ and New Jersey \13\, have held 
that a gun manufacturer or seller can be liable for the 
criminal use of guns, if that use is a foreseeable result of 
the manufacturer's or seller's negligence or other wrongful 
conduct. Because most cases brought by gun violence victims 
involve ``criminal or otherwise unlawful misuse'' of a gun that 
was caused or facilitated by a gun manufacturer or seller, the 
bill amounts to an unprecedented attack on the legal rights of 
such victims.\14\
---------------------------------------------------------------------------
    \10\ Cincinnati v. Beretta, et. al., 768 N.E.2d 1136 (Oh. 2002).
    \11\ Smith v. Bryco, 33 P.3d 638 (N.M. App. 2001).
    \12\ Young v. Bryco, et.al., 765 N.E.2d 1 (Ill. App. 2002) (appeal 
pending).
    \13\ Hurst v. Glock, 684 A.2d 970 (N.J. App. 1996).
    \14\ For example, a gun manufacturer may fail to include a feasible 
safety device, and as a result of that failure a child may 
unintentionally shoot another child. It is, of course, entirely 
foreseeable to the manufacturer that children will have access to guns. 
Under generally-accepted principles of products liability law, the 
manufacturer could be liable because the shooting was a foreseeable 
result of not including the safety device. Similarly, auto 
manufacturers are liable for injuries that could have been prevented by 
feasible safety features, even in accidents that involve speeding or 
other unlawful use of a car. However, under this bill, the gun 
manufacturer would be immune from suit because the child's possession 
and use of the gun, although foreseeable to the manufacturer, would be 
unlawful.
---------------------------------------------------------------------------
    Also, a gun seller may supply criminals with the means to 
kill by irresponsibly selling 10, 25, or 100 guns to a gun 
trafficker, as was the case with the injury suffered by the 
Minority witness at the Subcommittee hearing, former Officer 
Lemongello. Under generally accepted legal principles, such a 
sale could be negligent since the foreseeable result is that 
the trafficker will sell one of the guns to a criminal who will 
use that gun in crime. In Officer Lemongello's case, a West 
Virginia Circuit Court judge recently held that the gun dealer, 
who sold 12 guns in a cash sale, under suspicious 
circumstances, could be liable under that State's law of 
negligence and public nuisance for failing to use reasonable 
care in its sale, and that a jury could find that the 
subsequent criminal shooting was a foreseeable result of the 
negligent sale.\15\ However, under this bill, dealers would be 
immune from liability if the guns are used in crime. Nor will 
the specific narrow exceptions in the legislation protect the 
rights of most of the victims who have been harmed by 
irresponsible gun manufacturers and sellers.
---------------------------------------------------------------------------
    \15\ McGuire and Lemongello v. Will Co.,Inc., et. al., No. 02-C-
2952 (Cir. Ct. Kanawha County, W.Va.) (March 19, 2003).
---------------------------------------------------------------------------

        1. TRANSFEROR CONVICTED UNDER 924(H) OF TITLE 18, U.S.C

    The first exception in H.R. 1036 is for ``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.''

         LSection 924(h) of title 18, U.S. C. provides: 
        ``whoever knowingly transfers a firearm, knowing that 
        such firearm will be used to commit a crime of violence 
        (as defined in (c)(3)) or drug trafficking crime (as 
        defined in subsection (c)(2)) shall be imprisoned not 
        more than 10 years, fined in accordance with this 
        title, or both.''

         LThis exception would only allow lawsuits 
        against dealers who are convicted of selling guns 
        knowing that they will be used to commit a violent or 
        drug trafficking criminal offense under Federal or 
        State law. In other words, it applies only in the 
        unlikely event that a gun buyer clearly indicates his/
        her criminal intentions to the gun seller and is also, 
        in fact, convicted of the specific crime.\16\ Under 
        this exception, a prosecutor's decision--even if 
        justified--not to pursue a particular prosecution, or 
        to accept a plea bargain to a lesser offense may 
        operate to deny relief to one harmed as a result of a 
        negligent transfer.
---------------------------------------------------------------------------
    \16\ Mr. Scott was prepared to offer an amendment which would have 
eliminated this unprecedented ``criminal conviction predicate,'' 
requiring prosecution and conviction as a condition for bringing suit 
for civil relief.

         LThis exception would not preserve the pending 
        case brought by the family of former Northwestern 
        University basketball coach Ricky Byrdsong.\17\ Mr. 
        Byrdsong was walking with his children in Skokie, 
        Illinois when he was shot and killed with one of 72 
        guns sold to an Illinois gun trafficker by a dealer 
        over a period of a year and a half. The dealer clearly 
        should have known that the trafficker did not need 72 
        guns for his own use, but intended to sell them to 
        criminals. Since the dealer did not know specifically 
        to whom the trafficker would sell, or what specific 
        crimes his customers would commit, Mrs. Byrdsong's case 
        would not fall within this exception.
---------------------------------------------------------------------------
    \17\ Anderson v. Bryco, et al., No. 00 L 7476 (Cir. Court of Cook 
County, Ill.).
---------------------------------------------------------------------------

             2. NEGLIGENT ENTRUSTMENT AND NEGLIGENCE PER SE

    The bill also includes an exception for actions against gun 
sellers under the legal doctrines of negligent entrustment and 
negligence per se. This exception does not preserve any cases 
against gun manufacturers, and only protects a limited class of 
cases against sellers.
(a) Negligent Entrustment
         LNegligent entrustment is defined in 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, and does, use the product in a manner 
        involving unreasonable risk of physical injury to the 
        person and others.''

         LThis exception would cover only cases where 
        the dealer knows or should know that the person who is 
        buying the gun is likely to misuse it and the buyer 
        does, in fact, misuse it. Like the previous exception, 
        this would still shut the courthouse door to victims of 
        the far more common practice of dealers negligently 
        selling guns to traffickers who, in turn, supply 
        criminals.

         LUnder this exception, not only would the 
        previously-mentioned Byrdsong case be barred, but the 
        bill would deny relief to Minority witness, former New 
        Jersey police officer Lemongello and his partner, who 
        were shot with a handgun sold as part of a 12-handgun 
        sale by a West Virginia dealer to a ``straw buyer'' for 
        a gun trafficker.\18\ Even though the dealer who 
        irresponsibly supplied the gun trafficker with multiple 
        guns should have known the guns would be sold to and 
        used by criminals, they arguably did not ``negligently 
        entrust'' the guns since the persons to whom they sold 
        the guns were not the shooters.
---------------------------------------------------------------------------
    \18\ McGuire and Lemongello v. Will Co., Inc., No. 02-C-2952, (Cir. 
Court, Kanawha County, W.Va.)

         LBecause negligent entrustment is not even 
        recognized in every State, in some States this 
        ``exception'' would have absolutely no effect in 
        preserving claims of those harmed by the foreseeable 
        conduct of those to whom guns are negligently sold.\19\
---------------------------------------------------------------------------
    \19\ E.g., Regan v. Nissan North America, Inc., 810 A.2d 255 (R.I. 
2002) (Rhode Island does not recognize negligent entrustment theory).
---------------------------------------------------------------------------
(b) Negligence Per Se
         LNegligence per se is ``the unexcused 
        violation of a legislative enactment or an 
        administrative regulation which is adopted by the court 
        as defining the standard of conduct of the reasonable 
        man.'' \20\ To be liable for negligence per se, a 
        defendant must have violated a law or regulation and 
        the plaintiff must be in the class of victims that the 
        legislation intended to protect and the court must 
        conclude that it is ``appropriate'' to deem violation 
        of the particular statute as per se proof of 
        negligence.
---------------------------------------------------------------------------
    \20\ Perry v. S.N., 973 S.W.2d 301 (Tex. 1998). Texas's definition 
of ``negligence per se'' is similar to that employed by other States.

         LUnder this exception, gun sellers whose 
        negligence causes injury could not be liable unless, at 
        a minimum, they also violated a law or regulation that 
        the court found an ``appropriate basis'' for a 
        negligence per se claim. This exception would not 
        preserve the Illinois case discussed above, Anderson v. 
        Bryco, because even though the dealer was convicted of 
        violating gun laws in his sale of some guns to the 
        trafficker, he was not convicted of illegally selling 
        the gun used to shoot Ricky Byrdsong. The West Virginia 
        Lemongello case would not be protected by the exception 
        because the doctrine of negligence per se is not 
        recognized in West Virginia.\21\ Similarly, since 
        negligence per se also is not recognized in Washington 
        State \22\ this exception would not apply to the case 
        brought in that State by victims of last Fall's sniper 
        shootings against the gun shop from which the 
        Bushmaster assault rifle used in the shootings 
        mysteriously ``disappeared.'' \23\ Moreover, it is not 
        yet clear that a statutory violation was involved in 
        the ``disappearance'' of the Bushmaster assault rifle 
        used to shoot sixteen people. It may have been a case 
        of negligent store security or storage practices.
---------------------------------------------------------------------------
    \21\ Gillingham v. Stephenson, 551 S.E.2d 633 (W.Va. 2001). 
Negligence per se also is not an accepted basis for liability in a 
number of other States, including Arkansas, North Dakota and Maine. 
E.g., Berkeley Pump Co. v. Reed-Joseph Land Co., 653 S.W.2d 128 (Ark. 
1983); Brandt v. Milbrath, 647 N.W.2d 674 (N.D. 2002); Crowe v. Shaw, 
755 A.2d 509 (Me. 2000).
    \22\ See Wash. Rev. Code Ann. Sec. 5.40.050 (1986), abrogating 
negligence per se.
    \23\ Johnson v. Bull's Eye Shooter Supply, No. 03-2-03932-8 
(Sup.Ct.Wa.).
---------------------------------------------------------------------------

                3. KNOWING AND WILLFUL VIOLATIONS OF LAW

    The bill also exempts cases against gun sellers and 
manufacturers ``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.''

         LThis exception is an even more limited 
        version of negligence per se. The exemption does not 
        protect cases against negligent gun sellers or 
        manufacturers unless they also violate a law and the 
        case is brought in a State that applies the doctrine of 
        negligence per se.

         LFurther, under this exception, even sellers 
        who violate laws would not be liable unless that 
        violation was committed ``knowingly and willfully.'' 
        This is a demanding standard of proof that is difficult 
        to meet, and that is generally not required to be met 
        in civil cases.

                   4. BREACH OF CONTRACT OR WARRANTY

    The bill has an exception for ``an action for breach of 
contract or warranty in connection with the purchase of the 
product.''

         LBreach of contract cases occur when one party 
        to a contract claims the other party has violated a 
        provision of a contract. This would merely allow gun 
        purchasers to sue a dealer if, for example, the dealer 
        did not provide the gun for which the purchaser paid, 
        or the dealer violated the sales contract in some other 
        respect.

         LA warranty case would challenge a 
        manufacturer's refusal to repair or replace a product 
        as it promised under its warranty. This would merely 
        allow a gun purchaser to sue if, for example, the gun 
        malfunctioned within the warranty period and the 
        manufacturer refused to repair or replace it.

         LThis exception would only protect gun 
        purchasers, and would provide no remedies for other 
        persons injured by guns. Other victims of defectively 
        designed or negligently sold guns would not be allowed 
        to pursue their rights in court under this exception. 
        Even as to gun purchasers, their claims would be 
        limited only to what they were entitled under the scope 
        of the contract or warranty.\24\
---------------------------------------------------------------------------
    \24\ For example, if the manufacturer failed to include a feasible 
safety device in the gun, and that failure caused a death or injury, 
this exception would not apply to a suit by the victim because he/she 
would be suing under negligence or products liability law, but would 
not be claiming a breach of contract or warranty. The negligent sales 
cases discussed above would also be protected by this exception, as 
they are based in negligence, not contract or warranty.
---------------------------------------------------------------------------

     5. DEFECTIVE DESIGN OR MANUFACTURE WHERE GUN USED AS INTENDED

    The bill protects actions ``for physical injuries or 
property damage resulting directly from defect in design or 
manufacture of the product, when used as intended.'' (Sec. 
4(5)(v)).

         LThis exception allows cases where, for 
        example, a gun exploded when it was being fired, as a 
        result of faulty manufacture or design. In such a case, 
        the gun was ``used as [the manufacturer] intended,'' 
        but nevertheless malfunctioned. However, the exception 
        would not apply to most defective design cases actually 
        brought under traditional products liability theories. 
        In most such cases the use of the gun, while clearly 
        foreseeable to the manufacturer, was not ``as 
        intended.'' This provision alters generally-accepted 
        principles of products liability law under which a 
        manufacturer must implement feasible safety features 
        that would prevent injury caused by foreseeable use or 
        misuse--even if that use is not ``intended.'' For 
        example, auto makers are liable for not making cars 
        ``crashworthy,'' regardless of whether a particular 
        accident may have involved a use of the car--excessive 
        speed or other driver error--not ``intended'' by the 
        manufacturer.

         LUnder this exception the parents of Kenzo 
        Dix, whose son was unintentionally shot and killed by a 
        young friend who thought the gun was unloaded, would be 
        barred from pursuing their case against the gun 
        manufacturer.\25\ Even though the manufacturer's 
        failure to include a feasible safety device would have 
        alerted Kenzo's friend that the gun was loaded, and 
        would have prevented him from firing the gun--and the 
        friend's ``misuse'' was common and predictable--the gun 
        was not ``used as intended.'' Ironically, however, 
        similar cases involving ``unintended'' uses, with less 
        tragic consequences, would be allowed against BB gun 
        makers.
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    \25\ Dix v. Beretta U.S.A., No. 750681-9 (Sup. Court of Alameda 
County, CA).
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      E. H.R. 1036 RAISES CONSTITUTIONAL AND FEDERALISM CONCERNS.

    Among the many problems with the legislation, we are also 
concerned that the bill may be unconstitutional under the 
Commerce Clause, the Fifth Amendment, and the Seventh 
Amendment.
    First, the bill as drafted invites legal challenges to 
Congressional authority to legislate in this area, given the 
Supreme Court's recent Commerce Clause jurisprudence. There is 
a genuine issue as to whether H.R. 1036 is a permissible 
exercise of Congress' power to regulate interstate 
commerce,\26\ given that it contains no interstate commerce 
jurisdictional requirement, and merely makes a flat and 
unsubstantiated assertion that all of the activities it 
regulates affect interstate commerce.\27\ The Supreme Court 
repeatedly has frowned upon Federal intervention into areas 
like liability law that have been traditionally reserved to the 
states.\28\
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    \26\ Article I, Section 8 of the Constitution provides, inter alia, 
``Congress shall have Power . . . to regulate Commerce with foreign 
Nations and among the several States. . . .'' U.S. Const. art I, 
Sec. 8, cl. 3.
    \27\ According to the Supreme Court in United States v. Lopez, 514 
U.S. 549 (1995), one of the problems with the school gun ban was that 
it contained ``no express jurisdictional element which might limit its 
reach to a discrete set of firearms possessions that additionally have 
an explicit connection with or effect on interstate commerce.''
    \28\ The Court in Lopez observed that there were certain 
traditional areas of state law, such as criminal law and education, 
which should be off limits to Federal intervention. The concurrence by 
Justices Kennedy and O'Connor also reasoned that the Federal Government 
should avoid involving itself in areas which fall within the 
``traditional concern of the states,'' noting that over 40 States had 
adopted laws outlawing the possession of firearms on or near school 
grounds.
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    The bill also invites challenges that it violates the Fifth 
Amendment, which provides that no person shall be ``deprived of 
life, liberty, or property without due process of law,'' \29\ a 
proscription which has been held to include an equal protection 
component.\30\ Plaintiffs will no doubt argue that the law does 
not provide a legislative quid pro quo and, as such, violates 
the Fifth Amendment. In exchange for depriving plaintiffs of 
their common law rights, the bill does not provide any 
offsetting legal benefits, at least to the parties directly 
harmed by the loss of their common law rights.
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    \29\ U.S. Const. amend. V.
    \30\ See Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment 
due process found to incorporate equal protection guarantees in case 
involving public school desegregation by the Federal Government in the 
District of Columbia).
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    Also, by applying to pending lawsuits, the bill invites the 
constitutional challenge that the bill constitutes an unlawful 
taking in violation of the Fifth Amendment. This Committee 
considers various liability proposals, and it is highly unusual 
to impact pending lawsuits.
    Finally, the bill may violate the Seventh Amendment, which 
provides, ``[i]n suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of trial by 
jury shall be preserved, and no fact tried by a jury shall be 
otherwise re-examined in any Court of the United States, than 
according to the rules of the common law.'' \31\ Because the 
bill eliminates the right of a jury to determine liability 
issues, the legislation arguably deprives a plaintiff of the 
right to jury.
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    \31\ U.S. Const. amend. VII.
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                               CONCLUSION

    Supporters of H.R. 1036, the gun lobby-backed immunity bill 
that would shield irresponsible gun manufacturers, sellers, 
dealers, distributors and importers from liability, claim that 
the lawsuits prohibited by the bill are ``frivolous,'' 
``unprecedented,'' and have been universally rejected by the 
courts. To the contrary, courts around the country have 
recognized that precisely the types of cases that would be 
barred by this bill are grounded in well-accepted legal 
principles, including negligence, products liability, and 
public nuisance. These courts have held that those who make and 
sell guns--like all others in society--are obligated to use 
reasonable care in selling and designing their product, and 
that they may be liable for the foreseeable injurious 
consequences of their failure to do so even if those 
foreseeable consequences include unlawful conduct by third 
parties. This bill, if enacted, would nullify these decisions, 
rewriting and subverting the common law of those States, and 
then, only with respect to a particular industry.
    To be certain, a few States have held--at least with 
respect to manufacturers--in a manner consistent with the 
thrust of this bill. The diversity of these State court 
decisions, however, is not a sign of a national problem in need 
of a fix. It is, instead, the essence of federalism. It is not 
the business of Congress cavalierly to undermine the authority 
of the States to make and interpret their own laws or to 
eviscerate the vested rights and interests of the citizens 
therein. It is not a responsible Congress that does so through 
the spectacle of a mock hearing and truncated markup in which 
voices of dissent were suppressed.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.

                                
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