[House Report 109-124]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-124

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



 
               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

                                _______
                                

 June 14, 2005.--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 AND ADDITIONAL DISSENTING VIEWS

                        [To accompany H.R. 800]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 800) to prohibit civil liability actions from being 
brought or continued against manufacturers, distributors, 
dealers, or importers of firearms or ammunition for damages or 
injunctive or other relief resulting from the misuse of their 
products by others, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     5
Hearings.........................................................    29
Committee Consideration..........................................    29
Vote of the Committee............................................    29
Committee Oversight Findings.....................................    39
New Budget Authority and Tax Expenditures........................    39
Congressional Budget Office Cost Estimate........................    39
Performance Goals and Objectives.................................    40
Constitutional Authority Statement...............................    40
Section-by-Section Analysis and Discussion.......................    40
Changes in Existing Law Made by the Bill, as Reported............    41
Markup Transcript................................................    42
Dissenting Views.................................................   139
Additional Dissenting Views......................................   150

                             The Amendment

  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) The Second Amendment to the United States Constitution 
        provides that the right of the people to keep and bear arms 
        shall not be infringed.
            (2) The Second Amendment to the United States Constitution 
        protects the rights of individuals, including those who are not 
        members of a militia or engaged in military service or 
        training, to keep and bear arms.
            (3) 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.
            (4) 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.
            (5) 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 products 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.
            (6) 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.
            (7) The liability actions commenced or contemplated by the 
        Federal Government, States, municipalities, and private 
        interest groups and others 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.
            (8) The liability actions commenced or contemplated by the 
        Federal Government, States, municipalities, private interest 
        groups, and others attempt to use the judicial branch to 
        circumvent the legislative branch of the Government by 
        regulating interstate and foreign commerce through judgments 
        and judicial decrees, thereby threatening the separation of 
        powers doctrine and weakening and undermining important 
        principles of federalism, State sovereignty, and comity among 
        the several States.
    (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, and their trade associations, for the harm solely 
        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.
            (6) To preserve and protect the separation of powers 
        doctrine and important principles of federalism, State 
        sovereignty, and comity among the several States.
            (7) To exercise the power of Congress under article IV, 
        section 1 of the United States Constitution to carry out the 
        full faith and credit clause.

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)(A) 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 or proceeding 
                or an administrative proceeding brought by any person 
                against a manufacturer or seller of a qualified 
                product, or a trade association, for damages, punitive 
                damages, injunctive or declaratory relief, abatement, 
                restitution, fines, or penalties, or other 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 of an offense 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 
                        violated a State or Federal statute applicable 
                        to the sale or marketing of the product, if the 
                        violation was a proximate cause of the harm for 
                        which relief is sought, including--
                                    (I) any case in which the 
                                manufacturer or seller knowingly made 
                                any false entry in, or failed to make 
                                appropriate entry in, any record 
                                required to be kept under Federal or 
                                State law with respect to the qualified 
                                product, or aided, abetted, or 
                                conspired with any person in making any 
                                false or fictitious oral or written 
                                statement with respect to any fact 
                                material to the lawfulness of the sale 
                                or other disposition of the qualified 
                                product; or
                                    (II) any case in which the 
                                manufacturer or seller aided, abetted, 
                                or conspired with any other person to 
                                sell or otherwise dispose of the 
                                qualified product, knowing, or having 
                                reasonable cause to believe, that the 
                                actual buyer of the qualified product 
                                was prohibited from possessing or 
                                receiving a firearm or ammunition under 
                                subsection (g) or (n) of section 922 of 
                                title 18, United States Code;
                            (iv) an action for breach of contract or 
                        warranty in connection with the purchase of the 
                        product; or
                            (v) an action for death, physical injuries, 
                        or property damage resulting directly from a 
                        defect in design or manufacture of the product, 
                        when used as intended or in a reasonably 
                        foreseeable manner, except that if the 
                        discharge of the product was caused by a 
                        volitional act that constituted a criminal 
                        offense, then such act shall be considered the 
                        sole proximate cause of any resulting death, 
                        personal injury, or property damage.
                    (B) Negligent entrustment.--As used 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 reasonably 
                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 or others.
                    (C) Rule of construction.--The exceptions set forth 
                in clauses (i) through (v) of subparagraph (A) shall be 
                construed so as not to be in conflict, and no provision 
                of this Act shall be construed to create a public or 
                private cause of action or remedy.
            (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)(A) of 
                title 18, United States Code) in interstate or foreign 
                commerce at the wholesale or retail level.
            (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 corporation, unincorporated association, federation, 
        business league, or professional or business organization--
                    (A) that is not organized or operated for profit, 
                and no part of the net earnings of which inures to the 
                benefit of any private shareholder or individual;
                    (B) that is an organization described in section 
                501(c)(6) of the Internal Revenue Code of 1986 and 
                exempt from tax under section 501(a) of such Code; and
                    (C) 2 or more members of which are manufacturers or 
                sellers of a qualified product.
            (9) Unlawful misuse.--The term ``unlawful misuse'' means 
        conduct that violates a statute, ordinance, or regulation as it 
        relates to the use of a qualified product.

                          Purpose and Summary

    H.R. 800, 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 pending on the date of enactment shall be dismissed 
immediately by the court in which the action was brought. 
``Qualified civil liability action'' is defined in Sec. 4(5)(A) 
as:

        a civil action or proceeding or an administrative 
        proceeding brought by any person against a manufacturer 
        or seller of a qualified product, or a trade 
        association, for damages, punitive damages, injunctive 
        or declaratory relief, abatement, restitution, fines, 
        or penalties, or other relief, resulting from the 
        criminal or unlawful misuse of a qualified product by 
        the person or a third party . . .

        However, as also provided in Sec. 4(5)(A), such term 
        does not include:

        (i) an action brought against a transfer or convicted 
        of an offense 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 violated a State or Federal 
        statute applicable to the sale or marketing of the 
        product, if the violation was a proximate cause of the 
        harm for which relief is sought, including----

            L(I) any case in which the manufacturer or seller 
        knowingly made any false entry in, or failed to make 
        appropriate entry in, any record required to be kept 
        under Federal or State law with respect to the 
        qualified product, or aided, abetted, or conspired with 
        any person in making any false or fictitious oral or 
        written statement with respect to any fact material to 
        the lawfulness of the sale or other disposition of the 
        qualified product; or

            L(II) any case in which the manufacturer or seller 
        aided, abetted, or conspired with any other person to 
        sell or otherwise dispose of the qualified product, 
        knowing, or having reasonable cause to believe, that 
        the actual buyer of the qualified product was 
        prohibited from possessing or receiving a firearm or 
        ammunition under subsection (g) or (n) of section 922 
        of title 18, United States Code;

        L(iv) an action for breach of contract or warranty in 
        connection with the purchase of the product; or

        L(v) an action for death, physical injuries, or 
        property damage resulting directly from a defect in 
        design or manufacture of the product, when used as 
        intended or in a reasonably foreseeable manner, except 
        that if the discharge of the product was caused by a 
        volitional act that constituted a criminal offense, 
        then such act shall be considered the sole proximate 
        cause of any resulting death, personal injury, or 
        property damage.

                Background and Need for the Legislation

    Congress, by passing H.R. 800, can protect the separation 
of powers and uphold democratic procedures by exercising its 
constitutional 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 AND SELLERS 
SHOULD NOT BE HELD LIABLE FOR THE CRIMINAL OR UNLAWFUL MISUSE OF THEIR 
                                PRODUCTS

    Historically, American courts have not held firearms 
manufacturers liable for the injuries caused by the criminal 
action of third parties, or where a third party unlawfully 
misuses the product.\1\ Individual plaintiffs attempting to 
establish firearm manufacturer liability have advanced various 
such theories of liability, 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.'' \2\ Relying upon 
earlier cases from the same State,\3\ the Eighth Circuit ruled 
that ``handgun manufacturers owe no duty to victims of illegal 
shootings.'' \4\ In other cases, individual plaintiffs have 
attempted but failed to recover under theories including 
defective design,\5\ failure to warn,\6\ public nuisance,\7\ 
negligence,\8\ strict product liability,\9\ and abnormally 
dangerous or ultra-hazardous activity liability.\10\ As one 
court observed of slingshots, ``ever since David slew Goliath, 
young and old alike have known that slingshots can be dangerous 
and deadly.'' \11\ The same applies to firearms.
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    \1\ 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).
    \2\ Colt's Mfg., 77 F.3d at 1083 (relying on Lorcin Eng'g, 900 
S.W.2d at 205).
    \3\ See Lorcin Eng'g, 900 S.W.2d at 202.
    \4\ Colt's Mfg., 77 F.3d at 1083.
    \5\ 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).
    \6\ 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'').
    \7\ 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.'').
    \8\ 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).
    \9\ 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.
    \10\ See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988).
    \11\ 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 because the 
manufacture and distribution of firearms is not per se 
unlawful.\12\ 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,\13\ and courts have held that a gun manufacturer 
is not an insurer that the product is completely safe,\14\ nor 
is it under any duty to design a product incapable of causing 
injury.\15\ A gun manufacturer who produces and markets a 
weapon that performs as intended and designed is not 
liable,\16\ since members of the general public can presumably 
recognize the dangers involved in using firearms and assume the 
responsibility for their own actions.\17\ A victim is not 
entitled to damages simply because he or she was injured 
through the use of the manufacturer's product.\18\
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    \12\ 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'').
    \13\ See Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. 
Tex. 1985) (applying Texas law).
    \14\ 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).
    \15\ 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).
    \16\ 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).
    \17\ 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).
    \18\ 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.\19\ In 
addition, any criminal misuse of a firearm that is not 
reasonably foreseeable is an intervening,\20\ or an independent 
superseding cause,\21\ which the manufacturer of a nondefective 
weapon has no duty to anticipate\22\ or prevent.\23\ Courts 
have also held that the risk of intentional criminal misuse of 
``Saturday Night Specials''--generally characterized by short 
barrels, light weight, and low cost \24\--does not give rise to 
liability,\25\ as this risk is not great enough to outweigh any 
potential societal benefits of the product.\26\
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    \19\ See Quiroz v. Leslie Edelman of N.Y., Inc., 638 N.Y.S.2d 154 
(2d Dep't 1996).
    \20\ 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).
    \21\ 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).
    \22\ See Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 
1206 (E.D. Ky. 1973) (applying Kentucky law).
    \23\ See Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649 
(Fla. Dist. Ct. App. 3d Dist. 1986).
    \24\ See Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (1985).
    \25\ See King v. R.G. Industries, Inc., 451 N.W.2d 874 (1990).
    \26\ 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,\27\ such as criminal or accidental 
misuse.\28\ 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.\29\ In First 
Commercial Trust Co. v. Lorcin Engineering, Inc., the Arkansas 
Supreme Court held that handgun manufacturers ``owed no legal 
duty'' to shooting victims.\30\ 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.\31\ 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.'' \32\ A 
Louisiana court also held that gun manufacturers have no duty 
to abstain from the legal manufacturing and selling of 
guns.\33\ 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.\34\
---------------------------------------------------------------------------
    \27\ 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).
    \28\ 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).
    \29\ See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 
2d 882, 902 (E.D. Pa. 2000).
    \30\ Lorcin, 900 S.W.2d at 203.
    \31\ Armijo, 843 F.2d at 407.
    \32\ Leslie v. United States, 986 F. Supp. 900, 911 (D.N.J. 1997).
    \33\ See Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 
1989).
    \34\ 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).
---------------------------------------------------------------------------
    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.\35\ 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.'' \36\ The judge asserted that Bridgeport ``cannot 
seriously maintain that reasonable certainty in calculating 
their damage claims is within the realm of possibility.'' \37\
---------------------------------------------------------------------------
    \35\ 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).
    \36\ 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).
    \37\ 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, and not its user. 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, someone 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. . . .''\38\ 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.\39\ 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. . . .'' \40\
---------------------------------------------------------------------------
    \38\ Oliver Wendell Holmes, ``Privilege, Malice, and Intent,'' 1894 
Harv.L. Rev. 1, 10 (1894).
    \39\ 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.
    \40\ 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 (citing Continental Paper Bag Co. v. Eastern 
Paper Bag Co., 210 U.S. 405, 426 (1908); Crown Die & Tool Co. v. Nye 
Tool & Machine Works, 261 U.S. 24, 34 (1923)). Discussing ``utility,'' 
for patent law purposes, the Court explained how the occasional misuse 
of a product does not negate its utility. To begin with, the court 
noted that the existence of a patent grant was ``prima facie proof of 
utility.'' Fuller, 120 F. at 275. The court then asked whether evidence 
that the patented device ``has been used for pernicious purposes'' 
could prove that the device ``is incapable of serving any beneficial 
end?'' Id. To answer the question, the court adopted a conclusion from 
a leading patent treatise, which the court then quoted at length:

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

      Fuller, 120 F. at 275-76 (quoting Walker, 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.,\41\ 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.\42\ 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.'' \43\ Similarly, 
courts have dismissed city and county complaints seeking 
recovery at common law for injuries to remote third 
parties.\44\ As one commentator has described the issue of 
remoteness:
---------------------------------------------------------------------------
    \41\ 332 U.S. 301 (1947).
    \42\ See id. at 304.
    \43\ Id. at 315.
    \44\ 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.\45\
---------------------------------------------------------------------------
    \45\ 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.\46\ 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,'' \47\ 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.\48\ 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.'' \49\ However, gun 
manufacturers do not have the financial capacity of the 
cigarette companies whose sales average $45 billion 
annually.\50\ In contrast, the gun industry grosses only $1.5 
billion a year.\51\ It has been estimated that tobacco 
companies spent approximately $600 million a year defending 
against suits brought by the States.\52\ Firearms companies are 
incapable of financing a similar defense.\53\ 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.'' \54\ 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.\55\ 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.\56\ 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.\57\
---------------------------------------------------------------------------
    \46\ 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.
    \47\ District of Columbia v. Beretta U.S.A. Corp., et al., 2002 WL 
31811717 (D.C. Super.), at *2.
    \48\ 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).
    \49\ H. Sterling Burnett, ``Firearms Cease-Fire?'' The Washington 
Times (March 21, 2003) at A21.
    \50\ See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits, 
The New York Times (March 21, 1999) at A32.
    \51\ See William C. Symonds et al., ``Under Fire,'' Business Week 
(August 16, 1999) at 63.
    \52\ See Fox Butterfield, ``Lawsuits Lead Gun Maker to File for 
Bankruptcy,'' The New York Times (June 24, 1999) at A14.
    \53\ Id.
    \54\ Sharon Walsh, ``Gun Industry Views Pact as Threat to Its 
Unity,'' The Washington Post (March 18, 2000) at A10.
    \55\ Id.
    \56\ 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.
    \57\ 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.\58\ The United 
States had developed a leading position in general aviation. 
However, during the 1980s and early 1990s, the American general 
aviation industry deteriorated rapidly.\59\ General aviation 
aircraft production plummeted between 1978 and 1991 from 18,000 
planes to less than 900.\60\ The manufacture of single engine 
piston aircraft fell to only 555 by 1993.\61\ 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.\62\
---------------------------------------------------------------------------
    \58\ 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).
    \59\ 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.
    \60\ See id.
    \61\ See id.
    \62\ 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; \63\ 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, were later 
reinstated by the Ohio Supreme Court.\64\
---------------------------------------------------------------------------
    \63\ 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), at 22. 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).
    \64\ 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.\65\ The 
earliest appearance of this concept in American law occurred in 
Anthony v. Slaid.\66\ In that case, the plaintiff Anthony 
contracted to assist the poor by funding medical care and other 
assistance.\67\ 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.\68\ 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.'' \69\ Anthony sued Mrs. Slaid's husband as 
the then-legally-liable party, seeking reimbursement of his 
increased costs.\70\ 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.'' \71\ 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.'' \72\ 
The court then sustained dismissal of Anthony's complaint.\73\ 
Soon thereafter, the United States Supreme Court applied the 
remoteness doctrine to bar a plaintiff's claims in Insurance 
Co. v. Brame.\74\ 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.\75\ 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.\76\ Finding that 
the relevant cases were ``substantially uniform against the 
right of recovery,'' \77\ 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.'' \78\
---------------------------------------------------------------------------
    \65\ See Holmes v. Securities Investor Protection Corporation, 503 
U.S. 258, 269 (1992).
    \66\ 52 Mass. 290 (1 Met. 1846).
    \67\ See id. at 290-91.
    \68\ See id. at 291.
    \69\ Id.
    \70\ See id.
    \71\ Id.
    \72\ Id.
    \73\ See id.
    \74\ 95 U.S. 754, 759 (1877).
    \75\ Id. at 754.
    \76\ Id. at 756.
    \77\ Id. at 758.
    \78\ 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.\79\ 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.\80\ SIPC filed 
Racketeer Influenced and Corrupt Organizations (``RICO'') 
claims to recoup from the inside trader those amounts it had 
paid to the brokers' clients.\81\ 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.\82\ 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.\83\ 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.'' \84\ 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.'' \85\
---------------------------------------------------------------------------
    \79\ 503 U.S. 258 (1992).
    \80\ See id. at 261-62.
    \81\ See id. at 263.
    \82\ See id. at 271.
    \83\ See id. at 276.
    \84\ See id. at 268.
    \85\ 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.\86\ 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 effort to apportion damages would inevitably result in 
arbitrary and unfair consequences. 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.
---------------------------------------------------------------------------
    \86\ Id. at 268.
---------------------------------------------------------------------------
    The remoteness doctrine articulated in Anthony, Brame, and 
Holmes has been embraced by the Second,\87\ Third,\88\ 
Fifth,\89\ Sixth,\90\ Seventh,\91\ and Ninth\92\ Circuit Courts 
of Appeals, as well as by multiple district courts,\93\ 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 \94\ and multiple 
Federal district courts \95\ 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.\96\ However, subsequent decisions have 
effectively rejected or limited these minority opinions and 
have reasserted the importance of the remoteness doctrine in 
those jurisdictions.\97\
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    \87\ 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).
    \88\ 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).
    \89\ See Texas Carpenters Health Benefit Fund v. Philip Morris, 
Inc., 199 F.3d 788, 789 (5th Cir. 2000).
    \90\ See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir. 
1999).
    \91\ 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).
    \92\ 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).
    \93\ 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'').
    \94\ 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).
    \95\ 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).
    \96\ 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).
    \97\ 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 100 years ago in the case of 
Connecticut Mutual Life Insuance Co. v. New York & New Haven 
Railway Co.,\98\ in which an insurer brought a negligence 
action against a tortfeasor responsible for the death of its 
insured.\99\ 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.\100\ 
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.'' \101\ Likewise, the 
common law of other States bars such remote claims.\102\
---------------------------------------------------------------------------
    \98\ 25 Conn. 265 (1856).
    \99\ See id. at 271.
    \100\ 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).
    \101\ Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220 
Conn. 689 (1991).
    \102\ 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.\103\ Some immunity statutes are broader in scope and 
affect the legal rights of private individuals.\104\ But none 
do or can address the national problem addressed by H.R. 800.
---------------------------------------------------------------------------
    \103\ 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).
    \104\ See Alaska Stat. Sec. 09.65.155 (enacted 1999) (precluding 
civil actions against gun manufacturers and sellers if based on the 
lawful sale, manufacture, or design of the gun, but with exceptions for 
claims based on a negligent design or manufacturing defect); Cal. Civ. 
Code Sec. 1714.4 (enacted 1983) (precluding firearm from being found 
defective in products liability action on ground that its benefits do 
not outweigh its risks); Colo. Rev. Stat. Sec. Sec. 13-21-501, 13-21-
504.5 (enacted 2000) (precluding tort actions against gun manufacturers 
and sellers for any remedy arising from injury or death caused by 
discharge of a firearm, but with exceptions for product liability 
claims and damages proximately caused by an action in violation of a 
statute or regulation); Idaho Code Sec. 6-1410 (enacted 1986) 
(precluding firearm from being found defective in products liability 
action on ground that its benefits do not outweigh its risks); Indiana 
Code Sec. Sec. 34-12-3-1 to -5 (enacted 2001) (barring all actions 
based on lawful design, manufacture, marketing, or sale of firearm and 
any recovery of damages resulting from criminal or unlawful misuse of 
firearm); Ky. Rev. Stat. Sec. 411.155 (enacted 1988) (providing that no 
defendant is liable for damages resulting from criminal use of firearm 
by third party, unless defendant conspired with or willfully aided, 
abetted, or caused the commission of the criminal act, but not limiting 
doctrines of negligence or strict liability relating to abnormally 
dangerous products or activities or defective products); La. Rev. Stat. 
Sec. 2800.60 (enacted 2000) (declaring that gun manufacturers and 
sellers are not liable for shooting injuries unless proximately caused 
by the unreasonably dangerous construction or composition of the 
product, are not liable for unlawful or negligent use of a gun that was 
lawfully sold, are not liable for failing to equip guns with magazine 
disconnect safeties, loaded chamber indicators, or personalization 
devices to prevent unauthorized use, and are not liable for failing to 
provide warnings about unauthorized use of firearms or the fact that a 
semi-automatic gun may be loaded even when the ammunition magazine is 
empty or removed); Md. Code Sec. 36-I (enacted 1988) (providing that 
defendant cannot be held strictly liable for damages resulting from 
criminal use of firearm by third person unless defendant conspired with 
or aided, abetted, or caused commission of criminal act); Michigan 
Compiled Laws Annotated Sec. 28.435(7) (enacted 2000) (providing that a 
gun dealer is not liable for damages arising from use or misuse of a 
gun if the dealer provides a trigger lock or gun case with each gun 
sold and complies with all other State and Federal statutory 
requirements); Nev. Rev. Stat. Sec. 41.131 (enacted 1985) (stating that 
no cause of action exists merely because firearm was capable of causing 
serious injury); N.C. Stat. Sec. 99B-11 (enacted 1987) (precluding 
firearm from being found defective in products liability action on 
ground that its benefits do not outweigh its risks); N.D. Code Sec. 32-
03-54 (enacted 2001) (providing that defendant cannot be held liable 
for lawful manufacture or sale of firearm, except in action for deceit, 
unlawful sale, or where transferor knew or should have known recipient 
would engage in lawful sale or transfer or use or purposely allow use 
in unlawful, negligent, or improper fashion); Ohio Rev. Code 
Sec. 2305.401 (enacted 2001) (providing that no member of firearm 
industry is liable for harm sustained as result of operation or 
discharge of firearm, unless firearm is sold illegally or plaintiff 
states product liability claim authorized by Chapter 2307 of Ohio 
Code); S.C. Code Sec. 15-73-40 (enacted 2000) (providing that plaintiff 
in products liability action involving firearm has burden to prove 
actual design of firearm was defective, causing it not to function in a 
manner reasonably expected by an ordinary consumer); S.D. Codified Laws 
Sec. 21-58-2 (enacted 2000) (providing that no one who lawfully 
manufactures or sells a firearm can be held liable because of the use 
of such firearm by another, but with exceptions including actions for 
negligent entrustment, for unlawful sales, or for injuries resulting 
from failure of firearms to operate in a normal or usual manner due to 
defects or negligence in design or manufacture); Section 82.006, Texas 
Civil Practice and Remedies Code (enacted 1993) (providing that 
plaintiff in products liability action must prove that actual design 
was defective, causing firearm not to function in manner reasonably 
expected by ordinary consumer); Wash. Rev. Code Sec. 7.72.030 (enacted 
1988) (precluding firearm from being found defective in design on 
ground that its benefits do not outweigh its risks).
---------------------------------------------------------------------------
Various Public Entities' Attempts to Breach the Separation of Powers
    In lawsuits brought by public entities that have been 
completely dismissed, the courts found that the plaintiffs were 
attempting to regulate firearms whereas only the State had the 
power to regulate in this area.\105\ 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 firearms makers, trade groups and 
retailers.\106\ 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 typical.\107\ The city 
sought ``injunctive relief which would require [the] defendants 
to change the methods by which they design, distribute[,] and 
advertise their products nationally.'' \108\ 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.'' \109\ 
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.\110\ 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.\111\ 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.\112\ 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.\113\ As a New York 
court stated in Spitzer v. Sturn, Ruger & Company, Inc.,\114\ 
``the Legislative and Executive branches are better suited to 
address the societal problems concerning the already heavily 
regulated commercial activity at issue'' \115\ and ``[a]s for 
those societal problems associated with, or following, legal 
handgun manufacturing and marketing, their resolution is best 
left to the Legislative and Executive branches.'' \116\
---------------------------------------------------------------------------
    \105\ 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.
    \106\ Penelas v. Arms Technology Inc. et al., No. 3D00-113, 
dismissal affirmed (Fla. Dist. Ct. App., 3d Dist., Feb. 14, 2001).
    \107\ See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 
809838 (Ohio Com. Pl. Oct. 7, 1999).
    \108\ Id. at *1.
    \109\ Id.
    \110\ See id.
    \111\ 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).
    \112\ 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)).
    \113\ See Morial v. Smith & Wesson Corp., 785 So. 2d 1, 16 (La. 
2001).
    \114\ 761 N.Y.S.2d 192, 194-95 (N.Y.App. 2003).
    \115\ Spitzer v. Sturn, Ruger & Company, Inc., 761 N.Y.S.2d 192, 
194-95 (N.Y.App. 2003).
    \116\ Id., at 203.
---------------------------------------------------------------------------
    Through traditional tort suits, public entities are using 
both extraordinary compensatory and punitive damage requests 
and requests for 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.'' \117\ And on June 24, 2003, a New York 
Appeals Court stated ``courts are the least suited, least 
equipped, and thus the least appropriate branch of government 
to regulate and micro-manage the manufacturing, marketing, 
distribution and sale of handguns.'' \118\
---------------------------------------------------------------------------
    \117\ 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.
    \118\ Spitzer v. Sturn, Ruger & Co., Inc., 309 A.D.2d 91, 99 
(N.Y.App. 2003).
---------------------------------------------------------------------------
    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 are 
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  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 
has reported 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, addressing a Clinton Administration lawsuit 
strategy, ``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 injuries inflicted by 
criminal conduct. 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  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  25.
    \134\ Complaint at  51, District of Columbia v. Beretta U.S.A. 
Corp., No. 00-0000428 (D.C. Super. Ct. filed Jan 20, 2000).
    \135\ Complaint at  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  64(e)(1), (2), Penelas v. Arms Tech., 
Inc., No. 99-01941 CA 06 (Fla. Cir. Ct. Miami-Dade County filed June 4, 
1999).
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    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\
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    \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\
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    \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\ And on 
October 15, 2003, a county judge in St. Louis dismissed the 
case that city brought against the firearms industry, writing 
that such lawsuits would open ``a floodgate to additional 
litigation.'' \165\
---------------------------------------------------------------------------
    \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.'').
    \165\ ``Judge Dismisses Lawsuit Against Gun Industry,'' The 
Associated Press (October 29, 2003).
---------------------------------------------------------------------------
    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 
invite the establishment of legal precedents that will 
encourage 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 a recent report by the Council 
of Economic Advisers:

        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 personal injury 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.\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\ 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).
---------------------------------------------------------------------------
    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.\176\ Only 
24% of the gun defenders in the study reported firing the gun, 
and only 8% reported wounding an adversary.\177\ Guns were most 
commonly used for defense against burglary, assault, and 
robbery.\178\ Also, a disproportionate share of defensive gun 
users are African-American or Hispanic compared to the general 
population.\179\
---------------------------------------------------------------------------
    \176\ 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.
    \177\ Id. at 173.
    \178\ Id. at 175.
    \179\ Id. at178.
---------------------------------------------------------------------------
    These benefits 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.\180\
---------------------------------------------------------------------------
    \180\ 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 this most recent and comprehensive 
scholarship to hold that the second amendment protects an 
individual's right to keep and bear arms. In United States v. 
Emerson,\181\ the Fifth Circuit stated that:
---------------------------------------------------------------------------
    \181\ 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.\182\
---------------------------------------------------------------------------
    \182\ 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.'' \183\
---------------------------------------------------------------------------
    \183\ 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.\184\ 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.'' \185\
---------------------------------------------------------------------------
    \184\ 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.'').
    \185\ The Federalist Papers (Clinton Rossiter ed., New American 
Library) (1961) at 299.
---------------------------------------------------------------------------
    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.'' 
\186\
---------------------------------------------------------------------------
    \186\ 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,\187\ 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.\188\
---------------------------------------------------------------------------
    \187\ 307 U.S. 174 (1939).
    \188\ 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. 800, will protect the separation 
of powers and uphold democratic procedures by exercising 
constitutional 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 Committee's Subcommittee on Commercial and 
Administrative Law held a legislative hearing on H.R. 800 on 
March 15, 2005. Testimony was received from the following 
witnesses: Rodd C. Walton, General Counsel, Sigarms, Inc.; 
Dennis A. Henigan, Director, Legal Action Project, Brady Center 
to Prevent Gun Violence; Bradley T. Beckman, Esq., Beckman & 
Associates, Counsel to North American Arms; Lawrence G. Keane, 
Senior Vice President & General Counsel, National Shooting 
Sports Foundations, Inc.

                        Committee Consideration

    On April 20, May 18, and May 25, 2005, the Committee met in 
open session and ordered favorably reported the bill H.R. 800 
without an amendment by a recorded vote of 22 yeas to 12 nays, 
a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 800.
    1. Ms. Jackson-Lee offered an amendment that would have 
precluded application of the Act to actions in which each 
plaintiff has not attained 18 years of age. By a rollcall vote 
of 9 yeas to 16 nays, the amendment was defeated.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              9              16
----------------------------------------------------------------------------------------------------------------

    2. Mr. Watt offered an amendment that prevented the Act 
from applying to pending cases. By a rollcall vote of 10 yeas 
to 18 nays, the amendment was defeated.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................              X
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              18
----------------------------------------------------------------------------------------------------------------

    3. Mr. Wexler offered an amendment that would have 
precluded application of the Act to actions brought by a 
plaintiff for damages resulting from an unintentional shooting 
of a child who has not attained 18 years of age with a firearm 
for which the manufacturer did not supply a safety lock 
approved by the National Institute of Standards and Technology. 
By rollcall vote of 10 yeas to 18 nays, the amendment was 
defeated.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................              X
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              18
----------------------------------------------------------------------------------------------------------------

    4. Mr. Watt offered an amendment that would have excluded 
sellers from the protections of the Act. By a rollcall vote of 
10 yeas to 17 nays, the amendment was defeated.

                                                   ROLLCALL NO. 4
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................              X
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              17
----------------------------------------------------------------------------------------------------------------

    5. Mr. Scott offered an amendment that would have precluded 
application of the Act to actions brought against a transferor 
who transfers a firearm in violation of section 924(h) of title 
18, United States Code, or a comparable or identical State 
felony law, by a party directly harmed by conduct of the 
transferee involving the firearm. By a rollcall vote of 8 yeas 
to 19 nays, the amendment was defeated.

                                                   ROLLCALL NO. 5
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              19
----------------------------------------------------------------------------------------------------------------

    6. Mr. Scott offered an amendment that would have striken 
from the findings and purposes section of the Act the reference 
to the second amendment's protection of an individual right. By 
a rollcall vote of 8 yeas to 21 nays, the amendment was 
defeated.

                                                   ROLLCALL NO. 6
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              21
----------------------------------------------------------------------------------------------------------------

    7. Ms. Lofgren offered an amendment that would have 
precluded application of the Act to actions brought by a 
plaintiff for injury suffered while acting in the capacity of a 
law enforcement officer. By a rollcall vote of 11 yeas to 20 
nays, the amendment was defeated.

                                                   ROLLCALL NO. 7
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              20
----------------------------------------------------------------------------------------------------------------

    8. Mr. Van Hollen and Mr. Meehan offered an amendment that 
would have precluded the application of the Act to actions 
brought against a manufacturer, seller, or trade association 
for negligence. By a rollcall vote of 8 yeas to 19 nays, the 
amendment was defeated.

                                                   ROLLCALL NO. 8
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              8              19
----------------------------------------------------------------------------------------------------------------

    9. Ms. Sanchez offered an amendment that would have 
precluded application of the Act to actions brought against a 
transferor who is alleged to have violated section 922(d)(9) of 
title 18, United States Code, or a comparable or identical 
provision of State law, by a party directly harmed by the 
alleged violation. By a rollcall vote of 10 yeas to 21 nays, 
the amendment was defeated.

                                                   ROLLCALL NO. 9
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              21
----------------------------------------------------------------------------------------------------------------

    10. Mr. Van Hollen offered an amendment that would have 
allowed lawsuits when the seller knows that the name of the 
person appears in the Violent Gang and Terrorist Organization 
File maintained by the Attorney General and the person 
subsequently used the qualified product in the commission of a 
crime under Federal or State law. By a rollcall vote of 10 yeas 
to 20 nays, the amendment was defeated.

                                                   ROLLCALL NO. 10
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                                           Pass
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................                              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             10              20          1 Pass
----------------------------------------------------------------------------------------------------------------

    11. Motion to report H.R. 800, as amended, was agreed to by 
a rollcall vote of 22 yeas to 12 nays.

                                                   ROLLCALL NO. 11
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             22              12
----------------------------------------------------------------------------------------------------------------

                      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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives 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. 800, 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, June 7, 2005.
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. 800, 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 Gregory 
Waring (for Federal costs), who can be reached at 226-2860, 
Melissa Merrell (for the State and local impact), who can be 
reached at 225-3220, and Paige Piper/Bach (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. 800--Protection of Lawful Commerce in Arms Act.
    H.R. 800 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. 800 would have 
no significant impact on the Federal budget. Enacting the bill 
would not affect direct spending or revenues.
    H.R. 800 would impose both an intergovernmental and a 
private-sector mandate as defined in the Unfunded Mandates 
Reform Act (UMRA) by prohibiting State, local, and tribal 
governments and the private sector from pursuing lawsuits 
against certain manufacturers or sellers of firearms and 
ammunition products, and related trade associations, when such 
products are used unlawfully to do harm. The bill also would 
preempt State liability laws and the authority of State courts 
to hear such cases.
    Depending on how such claims are resolved under current 
law, plaintiffs could stand to receive significant amounts in 
damage awards; the direct cost of the mandates in this bill 
would be the forgone net value of those awards. Currently, at 
least four governmental entities have cases pending, and there 
are at least three private suits pending. Because few lawsuits 
have been resolved, however, CBO has no basis for predicting 
the level of potential damage awards, if any. Therefore, we 
cannot estimate the cost of those mandates or whether they 
would exceed the annual threshold established by UMRA ($62 
million in 2005, adjusted annually for inflation for 
intergovernmental mandates and $123 million in 2005, adjusted 
annually for inflation for private-sector mandates).
    The CBO staff contacts for this estimate are Gregory Waring 
(for Federal costs), who can be reached at 226-2860, Melissa 
Merrell (for the State and local impact), who can be reached at 
225-3220, and Paige Piper/Bach (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.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, H.R. 
800 will provide protections for those in the firearms industry 
from lawsuits arising out of the criminal or unlawful acts of 
people who criminally or unlawfully misuse their products, and 
prevent one or a few courts from undermining the national 
firearms industry and all citizens' constitutionally protected 
right to bear arms.

                   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

    The following discussion describes the bill as reported by 
the Committee.

                          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 or proceeding or an administrative proceeding 
brought by any person against a manufacturer or seller of a 
qualified product, or a trade association, for damages, 
punitive damages, injunctive or declaratory relief, abatement, 
restitution, fines, or penalties, or other relief, resulting 
from the criminal or unlawful misuse of a qualified product by 
the person or a third party. Excluded from this definition are 
an action brought against a transfer or convicted of an offense 
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; 
an action brought against a seller for negligent entrustment or 
negligence per se; an action in which a manufacturer or seller 
of a qualified product knowingly violated a State or Federal 
statute applicable to the sale or marketing of the product, if 
the violation was a proximate cause of the harm for which 
relief is sought; an action for breach of contract or warranty 
in connection with the purchase of the product; or an action 
for death, physical injuries, or property damage resulting 
directly from a defect in design or manufacture of the product, 
when used as intended or in a reasonably foreseeable manner, 
except that if the discharge of the product was caused by a 
volitional act that constituted a criminal offense, then such 
act shall be considered the sole proximate cause of any 
resulting death, personal injury, or property damage.
    This section 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 reasonably 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 or others.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that H.R. 800 
makes no changes to existing law.

                           Markup Transcript



                            BUSINESS MEETING

                       WEDNESDAY, APRIL 20, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 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.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 800, the ``Protection of Lawful Commerce in Arms 
Act,'' for purposes of markup and move its favorable 
recommendation to the House.
    Without objection the bill will be considered as read and 
open for amendment at any point, and the Chair recognizes 
himself for 5 minutes to explain the bill.
    [The bill, H.R. 800, follows:]
      


    Chairman Sensenbrenner. Logic and fairness dictate that 
manufacturers and merchants should not be held responsible for 
the unlawful use of their lawful products by others. H.R. 800 
will prevent frivolous and abusive lawsuits from being filed in 
State or Federal Court against manufacturers and sellers of 
firearms or ammunition for harm resulting from the criminal and 
unlawful misuse of their products.
    The bill, which has significant bipartisan support does not 
preclude lawsuits against the person who transfers a firearm or 
ammunition knowing it will be used to commit a crime of 
violence or a drug trafficking crime. It 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 
violates any State or Federal statute applicable to the sale or 
marketing when such violation was the proximate cause of the 
harm for which 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 the design or manufacture of a 
firearm or ammunition.
    Recent trends in abusive litigation have inspired lawsuits 
against the firearms industry on theories of liability that 
would hold it financially responsible for the action of those 
who would use their products in a criminal or unlawful manner. 
Such lawsuits threaten to rip tort law from its moorings in 
personal responsibility to force firearms manufacturers into 
bankruptcy. And 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.
    The intended consequence of these frivolous lawsuits could 
not be clearer. As one of the personal injury lawyers suing 
Americans firearms companies told the Washington Post, quote, 
``The legal fees alone are enough to bankrupt the industry.'' 
These lawsuits are brazen attempts to accomplish through 
litigation what has not been achieved by legislation and 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 Federal judge, quote, ``The plaintiffs' attorneys 
simply want to eliminate handguns,'' unquote.
    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. A New York Appeals Court 
recently stated that, quote, ``Courts are the least suited, 
least equipped and thus, the least appropriate branch of 
Government to regulate and micro manage the manufacturing, 
marketing, distribution and sale of handguns,'' unquote.
    The police along with our military rely on the domestic 
firearms industry to supply them with reliable and accurate 
weapons that can best protect them in the line of fire. Abusive 
firearms lawsuits threaten to bankrupt the domestic firearms 
industry and leave our police and our troops relying on foreign 
manufacturers for their own protection.
    One abusive lawsuit filed 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 and firearms, Congress has the authority to 
act under the Commerce Clause of the Constitution.
    H.R. 800, by prohibiting abusive lawsuits supports core 
federalism principles articulated by the Supreme Court, which 
has made clear that, quote, ``One 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.''
    In 1985 one Federal judge said it would be nonsensical to 
claim that a country should be sued for selling a non-defective 
legal product. He predicted that the plaintiffs' unconventional 
application of tort law against such a product would also apply 
to automobiles, knives and even high-calorie food.
    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 would allow the tobacco 
industry in reimbursing Government expenditures.''
    Only a few years later this disastrous new age of 
litigation is already upon us, even as once fanciful lawsuits 
against fast food companies are rapidly proliferating.
    I recognize the gentleman from Michigan, Mr. Conyers, for 
an opening statement.
    Mr. Conyers. Mr. Chairman and Members, this would be 
unbelievable except that we're in the United States Congress 
where the unbelievable can occur with great regularity.
    Here we are today, April 20th on the 6th anniversary of the 
Columbine shootings, considering a bill that would eliminate 
the liability of those in the gun industry for marketing to 
criminals. That's what we're doing here today.
    Every day in the United States approximately 15 people die 
of gunfire, usually an average of 13 of them being students, 
and we now take up a bill to determine how we can immunize 
those who frequently help contribute to their acts. This bill 
ironically is not limited to lawsuits brought by cities against 
the gun industry for marketing to criminals, but the bill is 
drafted so that it would even apply to prevent gun enthusiasts 
in NRA who are injured by defective guns from getting their day 
in court. In other words, what we're doing here is eliminating 
product liability lawsuits involving firearms. That's why--this 
is really going almost beyond the incredible.
    In this regard the bill discourages gun manufacturers from 
adopting reasonable design safety enhancements, gunlocks, gun 
safety triggers, by substantially limiting the type of 
permissible product liability actions that plaintiffs can bring 
against the manufacturers of weapons.
    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 harm.
    In addition, the bill protects dealers who recklessly sell 
to gun traffickers knowing that the trafficker intended to 
resell the guns to criminals. I mean this is the House 
Committee on the Judiciary, with straight faces, taking up one 
of the most incredible pieces of legislation that I have seen. 
In addition, the bill shields sellers and manufacturers from 
liability in most instances, even when they engage in unlawful 
sales. In other words, the bill applies to persons who sell 
guns in violation of the Brady law.
    And finally, we undermine--and this attempt has been going 
on for quite a while--the United States Supreme Court's 
longstanding interpretation of the Second Amendment to the 
Constitution, because in this bill we find language that 
confers an individual right to keep and bear arms without 
qualifying what the Court has said for over the past 60 years, 
that the right conferred by the Second Amendment only exists in 
relationship to the preservation or efficiency of a well-
regulated militia.
    So we've finally gone over the top. Congratulations, 
Committee on the Judiciary. This is quite a way to mark the 
sixth anniversary of the Columbine shootings in this country.
    And I return----
    Mr. Cannon. Would the gentleman yield?
    Mr. Conyers. With pleasure.
    Mr. Cannon. I just wanted to clarify. You mentioned that 15 
people were killed every day with guns, and 13 of those were 
students? Does that mean like kids in schools or--Mr. Conyers, 
this is actually a question for you. You said that 13 out of 
the 15 people killed every day are students.
    Mr. Conyers. No. I want to correct that. That was at the 
Columbine shootings, and I'm glad the gentleman pointed it out.
    Chairman Sensenbrenner. The gentleman's time has expired. 
Without objection, all Members may insert opening statements in 
the record at this point.
    [The prepared statement of Mr. Smith follows:]

    
    
    Chairman Sensenbrenner. Are there amendments?
    Mr. Cannon. Mr. Chairman, I have a technical amendment.
    Chairman Sensenbrenner. The gentlemen from Utah.
    Mr. Cannon. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 800 offered by Mr. Cannon of 
Utah.
    Page 8, beginning on line 17, strike ``transfer or'' and 
insert transferior--transferor.
    Chairman Sensenbrenner. I think we know what we mean.
    The gentleman from Utah is recognized for 5 minutes.
    [The amendment of Mr. Cannon follows:]
  


    Mr. Cannon. It is rare when the clerk actually makes the 
whole argument that needs to be made, Mr. Chairman, but we have 
a technical----
    Chairman Sensenbrenner. Does the gentleman yield back the 
balance of his time?
    Mr. Cannon. Only to suggest that we should probably do this 
by voice vote, to eliminate a space between the R and the O in 
transferor. Thank you. I yield back.
    Chairman Sensenbrenner. Without objection the amendment is 
agreed to.
    Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. I have an amendment at the desk that's 
013.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 800 offered by Ms. Jackson 
Lee.
    Page 10, line 8, strike ``or''.
    Page 10, line 8, strike the period and insert ``; or''.
    Page 10, after line 19, insert the following: Subsection 
(vii)--(vi) an action in which each plaintiff has not attained 
16 years of age.
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes.
    [The amendment of Ms. Jackson Lee follows:]

    
    
    Ms. Jackson Lee. Mr. Chairman, I'd ask unanimous consent to 
change the 16 to 18. You read 16. On mine I had 18.
    Chairman Sensenbrenner. Sixteen was what was passed out. Is 
there any objection to the modification, change it from 16 to 
18? Hearing none, so ordered.
    Ms. Jackson Lee. I thank the Chairman.
    Chairman Sensenbrenner. The gentlewoman's recognized.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Let me first of all try to be empathetic to my colleagues 
who have made tort reform as a superior philosophy of this 
Committee, as opposed to justice. So that whatever angle we can 
use to reform or to pull back the opportunities to redress your 
grievances in a court, we use it in a topical way, whether or 
not it is to deny persons injured by faulty products, the lack 
of being able to petition the courts for relief, whether or not 
in the midst of all the good doctors there is a concern 
egregious medical malpractice, we want to turn the clock back 
on that.
    Now we want to be able to immune the proliferation of guns 
in the hands of not only criminals but in the results of that, 
the use of those guns by those who may not start out to be 
criminals. We want to make immune drug manufacturers who 
recklessly manufacture without safety precautions, and not 
concerned about where guns wind up.
    My amendment is simple. If you happen to be under the age 
of 18, that parents of minors have the right to sue, in this 
instance under 18, for civil damages when a minor under age of 
18 is injured or killed by a gun. In this instance, this 
legislation seeks to give a cover of innocence to gun 
manufacturers, as my Ranking Member said, on the very day of 
the tragedy of Columbine, where these were not criminals who 
took up these guns, but the acts resulting in criminal activity 
because of the proliferation of guns and the lack of safety 
procedures with these guns.
    And there is a connection to the gun manufacturers. And 
might I just cite for my colleagues that not all of these 
lawsuits have been ruled frivolous. These lawsuits have been 
brought in addition to my amendment that wants to allow parents 
to bring these lawsuits if their child has been injured or 
killed. But many local jurisdictions have brought these 
forward, and during the last term of Congress, of the 34 suits 
brought by these jurisdictions, 18 had won favorable rulings on 
the legal merits of their claims, 5 were battling motions to 
dismiss, 4 had their claims dismissed, and 7 ended without 
success. Half of those--or more than half of the 34 were found 
to be valid, and so this idea of putting a block to the 
courthouse and not allowing gun manufacturers, under the 
premise or the suggestion that their doors will be closed.
    Mr. Chairman, in Houston over the weekend, to my dismay, 
the National Rifle Association was present with the allegations 
or suggestions that 60,000 people would be going through in a 
ballroom. I understand they had an attendance of 2.000. This 
means of course that all of their bravo about all of their 
power begs for this Congress to have its own power and act on 
behalf of the American people to bar liability claims, 
legitimate liability claims. And I too support the effort of 
this Committee against frivolous claims, but I do think the 
courts have been very effective in weeding out and dismissing 
frivolous claims along with the jury system.
    How dare we ignore the penalty that is necessary when our 
children either lose their lives through gun violence and the 
use of guns, badly manufactured guns, guns without safety 
aspects to them, and our citizenry cannot go into the 
courthouse and protect their children.
    I think that gun manufacturers would have a wake-up call, 
they'd be more careful as these guns are transferred throughout 
the interstate commerce and we'd have a more perfect union if 
you will.
    The Second Amendment does allow the carrying of guns, and 
I'm not arguing against that, though I might have a difference 
of opinion in what context that amendment was written. But I 
cede the fact that the Second Amendment exists and I am a big 
believer in the bill of Rights. But I cannot imagine that a 
Judiciary Committee, entrusted with the responsibility of trust 
and justice----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Jackson Lee. I ask my amendment to be passed.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon----
    Mr. Cannon. Thank you, Mr. Chairman. I think the gravamen 
of the argument----
    Chairman Sensenbrenner.--is recognized for 5 minutes.
    Mr. Cannon. Thank you, Mr. Chairman.
    I think the gravamen of the argument that we've just heard 
is that if we allow gun manufacturers to be sued, then many 
objectives of the left will be achieved and guns will disappear 
because we won't have gun manufacturers. And while I understand 
that argument, it seems to me the nature of this amendment does 
not go there. And as I understand the amendment, this changes 
the responsibility. It seems to me--and I encourage the Members 
of the Committee to vote against this amendment because the age 
of a victim of a crime should not and does not affect the moral 
responsibility of the person that pulled the trigger. It should 
be the person that pulled the trigger who is held responsible 
regardless of the age of the victim.
    So with that clarification, unless I've misunderstood, I 
believe that's the nature of this amendment in its core, and I 
would urge the Members of the Committee to vote against this 
amendment----
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Cannon. Yes, I'd be pleased to yield.
    Ms. Jackson Lee. And I thank the gentleman very much. The 
core of it--and I appreciate the gentleman's response. The core 
of it is to not bar parents of minor children the ability to go 
into court against a gun manufacturer.
    Here's a premise. Let the courts decide whether or not 
there is no liability on the part of those manufacturers. I 
think the argument of this particular legislation is that a 
thriving gun manufacturing industry should not be undermined by 
frivolous lawsuits.
    Mr. Cannon. Reclaiming my time----
    Ms. Jackson Lee. I may conceded to you that point. What I'm 
suggesting is minors need our extra protection. If they are 
injured or they are killed, then their parents or their 
guardians should not be barred from the courthouse determining 
who's liable for that.
    Mr. Cannon. Thank you. Reclaiming my time, again, let me 
just repeat, I don't think the age should affect the moral 
responsibility of the act.
    But, Mr. Keller, did you want some time on this?
    Mr. Keller. Yeah. I can take my own time though if you'd 
like.
    Mr. Cannon. I'm actually hoping that we do it--the light is 
still green.
    Mr. Keller. I will accept your time then. Let me just say 
this to address two argument Ms. Jackson Lee made. First 
imagine a 17-year-old walks into a 7-11 convenience store to 
rob the place and uses a baseball bat, and smacks another 17-
year-old working there. Who's responsible? Is it the 17-year-
old criminal, or is it Louisville Slugger? Who should be sued 
here? I think most people would say it's crazy to sue 
Louisville Slugger.
    Now imagine the same scenario where the violent criminal 
walks in and shoots a 17-year-old with a Smith & Wesson gun. 
Who's responsible, the 17-year-old criminal or Smith & Wesson? 
It's equally silly to blame Smith & Wesson.
    And she says, well, you know, we're dedicated to tort 
reform on this Committee. This Committee is in no way 
representative of the U.S. Congress or the people. For example, 
this bill passed by 279 votes. It's going to pass by another 
two-thirds majority when it goes to the floor, broad bipartisan 
support, a lot of Democrats. It's good the way it's written. 
Let's leave it alone, and I urge my colleagues to defeat this 
amendment.
    Yield back to Mr. Cannon.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Cannon. Thank you, Mr. Keller.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Utah.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Cannon. Certainly, yield to the gentlelady from Texas.
    Ms. Jackson Lee. Those are always anecdotal stories that 
will raise your ire. Again, what I've asked is for the court to 
determine whether or not there's culpability on the part of the 
perpetrator or whether or not the gun was manufactured and 
negligently, and whether some act generated by the 
manufacturer----
    Mr. Cannon. Reclaiming my time, may I just ask----
    Ms. Jackson Lee. The NRA calls----
    Mr. Cannon. Pardon me, reclaiming my time.
    Chairman Sensenbrenner. Time belongs to the gentleman from 
Utah.
    Ms. Jackson Lee. I yield back.
    Mr. Cannon. Could I just make a clarification here? We're 
talking about the moral responsibility, and I think those 
anecdotes that Mr. Keller just explained focus on that issue. 
We're not talking at this point about manufacturer liability, 
are we, for a defective firearm?
    Ms. Jackson Lee. Yes, we could be. And I'm asking the----
    Mr. Cannon. Not with this amendment.
    Ms. Jackson Lee. If the gentleman would yield--yes. What 
I'm asking is that if you are injured as a child that your 
guardian or parents have the right to go in----
    Mr. Cannon. Thank you. Reclaiming my time since it's almost 
gone----
    Ms. Jackson Lee.--and have the case disposed of.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Utah.
    Ms. Jackson Lee. I yield back.
    Mr. Cannon. Thank you.
    Chairman Sensenbrenner. It's not yours to yield.
    Mr. Cannon. Thank you, Mr. Chairman, for that 
clarification.
    This is--if this is a matter of trying to create more 
opportunity for more people to sue gun manufacturers, that's 
why we oppose the underlying--the amendment.
    And with that, Mr. Chairman, I urge opposition to this 
amendment and yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentlewoman from Texas, Ms. Jackson Lee. Those 
in favor will say aye.
    Opposed, no.
    Ms. Jackson Lee. Rollcall.
    Chairman Sensenbrenner. The noes appear to have it. A 
rollcall will be ordered. Those in favor of the Jackson Lee 
amendment 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. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    [No response.]
    The Clerk. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote? Gentleman from Ohio, Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 9 ayes and 16 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Watt. It's Watt 002.
    The Clerk. Amendment to H.R. 800 offered by Mr. Watt----
    Mr. Watt. I ask unanimous consent the amendment be 
considered as read.
    The Clerk.--of North Carolina.
    Page 6, strike lines 14 through 23 and insert the 
following.
    Chairman Sensenbrenner. Without objection the amendment is 
considered as read, and the gentleman is recognized for 5 
minutes.
    [The amendment of Mr. Watt follows:]
  


    Mr. Watt. Thank you, Mr. Chairman. I won't take 5 minutes. 
The amendment simply makes the bill prospective. Under the bill 
as drafted any lawsuit, no matter where it is in the process, 
in trial, on appeal, in settlement negotiations, all get 
dismissed. This is simply, from my perspective, just unfair to 
be retroactively changing the law when people have filed 
litigation in good faith.
    Many of these litigants have invested resources and relied 
on the law as it exists, and they should not be punished now 
for doing so, which is the effect of where we are with the 
language in the bill. A simple amendment I ask support for.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Gentleman from Utah, Mr. Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. The amendment 
essentially guts the entire bill by preventing the dismissal of 
pending lawsuits. Much of the harm this bill addresses is 
caused by pending lawsuits. Furthermore, if this amendment 
passes, all that would happen is that hundreds of additional 
cases would be filed right before the date of enactment. This 
amendment would therefore make the current situation much worse 
and further endanger our fundamental--our right to bear arms.
    The Supreme Court has held that Congress can impose rules 
that apply retroactively if it does so pursuant to an economic 
policy. Review of retroactive legislation under the Due Process 
Clause is no more than a variety of judicial regulation of 
economic activity under the concept of substantive due process.
    The general principles the Supreme Court has handed down 
regarding constitutionality of retroactive legislation under 
the due process principles is summarized by the Court as 
follows: The strong deference accorded legislation in the field 
of national economic policy is no less applicable when that 
legislation is applied retroactively, provided that the 
retroactive application of the statute is supported by a 
legitimate legislative purpose furthered by rational means. 
Judgments about the wisdom of such legislation remain within 
the exclusive province of the Legislative and Executive 
Branches. Retroactive legislation does have to meet a burden 
not faced by legislation that has only future effects, but that 
burden is met simply by showing that the retroactive 
application of legislation is itself justified by a rational 
legislative purpose.
    A bill that aims to save the national firearms industry 
from bankruptcy due to pending lawsuits is an enactment 
pursuant to national economic policy. Certainly saving an 
industry from bankruptcy that is essentially preserving a 
constitutionally protected right to bear arms under Congress's 
Commerce Clause authority is constitutional.
    The Supreme Court has also held that the retroactive 
application of liability provisions of the Multi-Employer 
Pension Plan amendments of--Act of 1980 against the challenge 
that the withdrawal of liability provisions violated the Fifth 
Amendment taking of property clause. The provision of the act 
that required an employer to fund its share of a pension plan 
was viewed by the Court as a law regulating economic activity 
to promote the common good. Therefore, the law was not an 
invalid taking of property for which compensation was due.
    This again, Mr. Chairman, this amendment would gut the bill 
before us----
    Mr. Watt. Could I ask the gentleman to yield?
    Mr. Cannon. --and I urge the Members of the Committee to 
oppose its passage----
    Mr. Watt. Would the gentleman yield?
    Mr. Cannon. Certainly, Mr. Watt, I'd be pleased to yield.
    Mr. Watt. I appreciate the gentleman telling us about the 
protection of constitutional rights. Unfortunately, the Supreme 
Court, every time its had an opportunity to rule on it, has 
clearly said that there's no unconditional right to bear arms. 
There's no court that has said that that is any right that is 
unimpeded. So I wish you were as protective of other Supreme 
Court precedents as you seem to be of whatever you were reading 
about retroactivity.
    I'm not arguing that the Supreme Court has not ruled that 
you can do something retroactively. I'm arguing that in a 
society which is a just and fair society, it's just not fair to 
change the law after somebody has already relied on it in 
investing. So the argument is not about whether it can be done, 
it's whether it's proper and should be done, and I would hope 
that my colleagues on this Committee would be the arbiters of 
that, not the Supreme Court.
    Mr. Cannon. Reclaiming my time, the pleasure of debating 
with my Ranking Member on the Commercial and Administrative Law 
Subcommittee is that he is always very straightforward and in 
this case has made the argument that this provision is not just 
and fair, not that it would be unconstitutional. And the fact--
I agree that it's not unconstitutional, and I also personally 
agree that it needs to be--that it is a matter of justice and 
fairness to the American people to continue to have an industry 
that produces guns.
    Mr. Keller, did you want to----
    Mr. Keller. Yes. Would the gentleman yield? This should be 
defeated for three reasons. Number one, the Supreme Court 
allows the retroactive application. Number two, the same 
language has been approved in this bill by a 279 vote and in my 
bill, the Personal Responsibility in Food Consumption Act, by 
276 votes. And third, the policy is there's going to be a rush 
to file these lawsuits if we don't have this.
    For these reasons I would urge my colleagues to defeat the 
amendment.
    Mr. Cannon. Thank you. Mr. Issa, did you----
    Mr. Issa. Yeah. I might echo all of those, and then pile on 
that when the Congress passes retroactive tax increases as it 
did in the mid '90's, that would be one in which you'd say we 
had a choice, but when there's a recognized wrong, we have an 
obligation to correct it and correct it at the soonest possible 
date, and I commend you for bringing----
    Chairman Sensenbrenner. The time of the gentleman from Utah 
has expired.
    The question----
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. I rise in support of the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. If I could get Mr. Conyers to yield just for----
    Mr. Conyers. Absolutely, with pleasure.
    Mr. Watt. To continue this discussion. I'm wondering 
whether my colleagues, if we revise the amendment to say that 
it would not be retroactive from this day forward, but would 
only be prospective so there wouldn't be this purported rush to 
the courthouse that you are concerned about, whether that would 
make this any more palatable to you, or whether you're just 
standing behind that as an argument and you don't have any 
intention of doing anything about that?
    Mr. Cannon. Is that a question for me, Mr. Watt? I got 
distracted.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Michigan. He is the----
    Mr. Watt. Mr. Keller made the point. Maybe he would care to 
address that.
    Chairman Sensenbrenner. The gentleman from Michigan is----
    Mr. Watt. But I'll yield back to Mr.----
    Chairman Sensenbrenner.--the gatekeeper of this time.
    Mr. Watt.--Mr. Conyers, and he can yield to Mr. Keller if 
he wants.
    Mr. Conyers. I yield to the gentleman from Utah.
    Mr. Cannon. Thank you, but I think--Mr. Keller, did you 
follow that?
    Mr. Keller. I followed it. I'll just, in the interest of 
straight talk, I'm going to vote against this and any other 
amendment Mr. Watt has. [Laughter.]
    Mr. Watt. I appreciate the confidence in this and all other 
amendments. So I guess I should just go home, which is what 
this Committee has become in the last several weeks, just come 
and show up, and get voted against and go home. And that's the 
attitude that is arrogant and I think is going to ultimately 
get you all exactly the result that Democrats got when we got 
as arrogant as you all have gotten.
    Mr. Issa. Would the gentleman from Michigan yield?
    Mr. Conyers. To who?
    Mr. Issa. To me.
    Mr. Conyers. Yes, of course.
    Mr. Issa. I would hope for all of us that we would 
recognize that this is not about, hopefully about arrogance but 
about real differences in the view of the reforms being 
considered, and I for one----
    Mr. Watt. Would the gentleman yield?
    Mr. Issa. I for one am considering every reform in the----
    Chairman Sensenbrenner. The gentleman from Michigan has 
yielded to the gentleman from California, not the gentleman----
    Mr. Watt. Would the gentleman yield?
    Chairman Sensenbrenner. Does the gentleman from Michigan 
want to yield from somebody else?
    Mr. Conyers. I would like to yield to the gentleman from 
North Carolina.
    Mr. Watt. I appreciate the gentleman yielding, and as long 
as the gentleman is talking about this particular amendment, 
what the gentleman said has credibility. But when the gentleman 
says, ``I plan to vote against every amendment Mr. Watt 
offers,'' it defies credibility that he could have any 
semblance of an open mind going into this debate.
    Mr. Keller. Will the gentleman yield?
    Mr. Watt. So if that's where we are, you know, maybe I 
should just take the position anything that Mr. Keller says 
from this point on is just irrelevant, regardless of whether 
it's a nice comment about my mother, or, you know, that's just 
ridiculous, and that's not where we should be----
    Chairman Sensenbrenner. The chair advises all Members to 
refrain from personal insinuations which are against the rules.
    Mr. Watt. Well, if something is ridiculous, that's a fact, 
Mr. Chairman. It's not an insinuation.
    Chairman Sensenbrenner. Oh, I'll stipulate to that.
    Mr. Keller. Will the gentleman yield? Would you like me to 
respond?
    Mr. Conyers. Mr. Chairman, I would like to reclaim my time 
at this point.
    Chairman Sensenbrenner. Okay.
    Mr. Conyers. Could I ask the Subcommittee Chairman, Mr. 
Cannon, on what does he base the observation that the Watt 
amendment would gut the gun manufacturing industry if this were 
allowed, if his amendment were allowed to proceed?
    Mr. Cannon. Thank you. I appreciate the gentleman. If I 
might just say, first of all, I apologize to the Ranking Member 
for having been distracted and not then able to respond to his 
question that he asked earlier, and----
    Mr. Watt. I feel confident that you would have responded 
better than Mr. Keller.
    Mr. Cannon. Well, you know, I--let me just say that in the 
process of legislation it's really remarkably important that 
all sides are aired because judges have to look at what we've 
done and consider it. And so I don't think Mr. Keller was 
suggesting that he was not going to listen or be attentive or 
responsive to your ideas, but rather that----
    Mr. Conyers. Could I ask the gentleman to respond.
    Mr. Cannon. I will. I was trying to be gracious, that's 
all.
    Mr. Conyers. Well, so am I.
    Mr. Cannon. I think it's really important. The reason this 
guts the amendment is because it leaves--the current lawsuits 
are the problem, and if you have a huge number of new lawsuits, 
then you will guarantee--at least as far as what we've heard in 
our hearings on this--a huge cost which alone may bankrupt the 
companies that this bill would otherwise protect.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Keller. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman from----
    Mr. Conyers. Mr. Chairman, I ask for an additional minute, 
please.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. I'm just not persuaded that this amendment 
that would prevent retroactive application would gut this 
manufacturer--the gun manufacturers industry. I mean it may not 
be a happy moment, it may result in some successful litigation. 
I don't think it would be 100 percent successful. But it seems 
to me to be a wild exaggeration to think that a measure that 
would make a bill to take place from the time that it's 
affected would gut a whole industry's bill, and that seems to 
me to be a bit of an overstatement, to put it finely.
    Chairman Sensenbrenner. The time of the gentleman has 
expired. The question is on the amendment----
    Mr. Keller. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller, is recognized for 5 minutes.
    Mr. Keller. I would like to just briefly respond because 
the gentleman on the other side kept making these accusations, 
and when I asked them to yield time for me to respond, they 
wouldn't do so. So let me respond now, why I said I will vote 
against this amendment and future amendments.
    First with respect to this amendment, the reason I just cut 
to the chase and said in the interest of straight talk I'm 
going to vote against it, I had already gave a detailed policy 
analysis of three reasons why it is a flawed amendment.
    The second reason why I will vote against Mr. Watt's future 
amendments is because I know darn well, having dealt with him 
on this and other tort reform issues, not only on the Committee 
but on the House floor including a full day on a similar bill, 
that whatever amendment is accepted, he's just going to vote 
against the final bill. And so it is my desire to keep this 
bill intact and the same as it is in the Senate, just like we 
did with the cause action reform, because I sincerely want it 
to become law. My effort is not to use inflammatory words about 
something being arrogant or whatever, because I don't think 
passion is a substitute for substance, and what we need is a 
good substantive bill that will become law, and that is why I 
sincerely believe that any amendments that are offered right 
now or in the future will be merely to gut the bill.
    So that's the basis for my comments, and I yield back the 
balance of my time.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you. Mr. Chairman, we've debated this----
    Mr. Watt. If I could get the gentleman to yield just for a 
second.
    Mr. Nadler. I will be happy to yield.
    Mr. Watt. Because I want the record to show that I walked 
out of the room when Mr. Keller started to speak because I'm 
just going to disregard everything he says like he has said he 
is going to disregard everything I say.
    Mr. Nadler. Reclaiming--thank you. Reclaiming my time, Mr. 
Chairman. We have debated this bill in previous years, and I 
think people know that I think it's a ridiculous and horrible 
bill, and as Mr. Keller said, I will certainly vote against it, 
although he wasn't referring to me. But I do have to comment on 
what he just said because I think it's extremely pernicious.
    The idea of opposing every amendment, no matter what it is, 
no matter what the merits, on this bill and other bills as we 
have done, I'm glad that Mr. Keller at least announced publicly 
what's going on, whereas we went through the charade on a 
bankruptcy bill where every amendment was opposed no matter 
what the merits, obviously because the majority decided that no 
amendment was going to be entertained so we shouldn't have to 
go to conference, because the bill that should be passed out of 
the House is the exact same bill that passed out of the Senate, 
and that's what's going on here today.
    That makes the House an echo chamber of the Senate. We're 
elected to do the public's business. We're elected to put our 
input into these bills, and amendments should get a fair 
hearing and they should be voted up or down on the merits, and 
if the bill that we come up with is somewhat different than the 
Senate, then use the process and eventually approve the bill if 
the bill deserves approval.
    But the idea that all amendments should be voted down 
because we should not change the bill by a comma, lest it need 
discussion with the Senate makes a mockery of the entire 
process in the House, and we all may as well not come.
    It's antidemocratic and it's wrong, and I appreciate Mr. 
Keller's honesty in saying what the majority is doing, but it 
is demeaning to the House and it's demeaning to this Committee.
    I yield to the gentleman from--I yield back.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman.
    Chairman Sensenbrenner. Is recognized for 5 minutes.
    Ms. Waters. I move to strike the last world, and I am 
supportive of Mr. Watt's amendment. I think it's a very 
reasonable amendment that would simply eliminate the dismissal 
of pending actions, that part of the bill that requires the 
courts to dismiss any qualified liability action pending on the 
date that I read of this Act.
    Now, I understand that my colleague on the opposite side of 
the aisle simply said he would not support any amendments from 
Mr. Watt. However, I think the Members on the opposite side of 
the aisle should understand that increasingly they are being 
watched for their dismissal and marginalization of the courts 
of this country.
    We recently heard comments from the leadership of our 
colleagues on the opposite side of the aisle, that judges 
should be removed, that they will be scrutinized, that some of 
them should be gotten rid of, all kind of language. This 
particular legislation would simply say to the courts, ``You 
may not, you shall not, you cannot,'' despite the fact, as I 
understand it, we have over 34 municipalities or agencies of 
Government who have brought lawsuits against manufacturers and 
others, trying to make their cities safer. 18 of those have 
been successful. Our mayors and our supervisors and attorney 
generals, others are begging for help, trying to do something 
about taking guns off the street, trying to do something about 
those who would sell a gun to anybody despite the fact that 
they know they will resell these guns for unlawful use.
    And then this gentleman would have the audacity to say that 
he supports substance over passion? He has neither substance 
nor passion. And I would dare say that Mr. Watt has never, ever 
offered an amendment that was not a substantive amendment. Not 
only is he a substantive person, he's a lawyer with a 
background of great success in private practice. So I think to 
attempt to marginalize Mr. Watt's amendment is something that's 
simply unacceptable to all of the Members of this Committee.
    Again, gentlemen, this is a very reasonable amendment. No 
matter what your instructions are, no matter what you have been 
told you cannot do, I think it is absolutely unreasonable for 
people who are elected by the people to come to his House and 
simply sit and say they will accept no amendments because 
there's a strategy that's been developed, no matter how 
reasonable that amendment is.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment of 
the gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I move to 
strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. I suppose I agree with the idea that this bill 
is constitutional, but again, that doesn't mean it's right or 
fair. And I support the Watt amendment because it, even if 
you've already filed your case and won your case and if you're 
on appeal, passage of this bill will reverse all of that work. 
We ought to have some respect, I think, for the rule of law. 
These kinds of bills--this is not the first one we've 
introduced--try the case in the legislative branch and fix the 
result for one side. We got court doing that in the Schiavo 
case. The gentleman from Florida has reminded us that we tried 
to do that in the food case, where people get--are not 
restricted to the normal rule of law, they're not relegated to 
the jurisdictional branch of Government where they're stuck 
with an impartial judge and jury and the law as it is for 
everybody else. They get to come to the legislative branch 
where they can make donations to those deciding their fate and 
fix the result on their side. This--the underlying bill just 
fixes the result. At least you ought to, if you're going to fix 
the result from one side of the other, you ought to at least do 
it prospectively and not jump into the middle of an ongoing 
lawsuit and try to fix the result for your favored side rather 
than the other.
    Mr. Issa. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Issa. I'm assuming that there's no linkage intended 
between contributions and legislation in this body, that that 
was simply an observance that both are possible. Would that be 
correct, Mr. Scott?
    Mr. Nadler. Would the gentleman yield?
    Mr. Scott. Reclaiming my time. I pointed out that it is a 
matter of fact that the litigants in the legislative branch can 
make donations to the people deciding their fate, whereas that 
would not be done on top of the table in the jurisdictional 
branch.
    Mr. Nadler. Would the gentleman yield for a moment?
    Mr. Scott. And that's just a matter of fact. I mean, you 
get certain people that have an interest in this legislation 
who have made donations to Members of Congress.
    I yield to the gentleman from New York.
    Mr. Nadler. Thank you. I'll be very brief. Anyone who 
thinks there is no connection between campaign donations and 
legislation is naive in the extreme. I yield back.
    Mr. Scott. And reclaiming my time. And I think it is--
everybody else is stuck the jurisdictional branch, where you 
have an impartial judge and jury and the law as it started out 
before the case began. This would at least restrict the 
consideration of the case to the law the way it was when the 
case began, and not having the legislative branch jump into the 
middle of a lawsuit and change the law to affect the ongoing 
litigation. That's not fair, and that's why the amendment, I 
think, is entirely reasonable.
    I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Wisconsin, Mr. Green, seek recognition?
    Mr. Green. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman. I would yield some time 
to Mr. Keller.
    Mr. Keller. I thank the gentleman for yielding. I just have 
to tell you, the name-calling, I think, is silly. Because I've 
had debates on this with the same folks we're debating now, and 
we had a bill on the floor and that bill was referred by Mr. 
Watt as ``crap,'' and now we hear that anybody that opposed 
them are arrogant or they don't have passion or they don't have 
substance or they must be paid off--all kind of inflammatory 
comments. I don't move to strike the words down. I do think 
that the name-calling isn't a substitute for good legislation. 
And this is a good piece of legislation that a lot of 
Democrats--not those on the Committee, but a heck of a lot of 
Democrats in Congress support, word-for-word have already 
supported.
    And so I'm not going to respond with equal name-calling, 
but I am going to respond by voting no on these amendments and 
asking my colleagues to vote yes on----
    Ms. Waters. Will the gentleman yield?
    Mr. Keller. No. I yield back my time to Mr. Green.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Wisconsin.
    Mr. Green. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt. Those 
in favor will say aye? Opposed, no?
    The noes appear to have it.
    Chairman Sensenbrenner. rollcall vote is requested by a lot 
of people. So those in favor of the Watt amendment will, as 
your names are called, answer aye and those opposed no. And the 
clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members in the chamber wish 
to cast or change their vote? The gentleman from North 
Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. Anyone else who wishes to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 18 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    The gentleman from Florida, Mr. Wexler?
    Mr. Wexler. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 800 offered by Mr. Wexler. 
Page 10, line 8, strike ``or.'' Page 10, line 19, strike the 
period and insert,; or----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Wexler follows:]
      


    Chairman Sensenbrenner. The gentleman from Florida will be 
recognized for 5 minutes.
    Mr. Wexler. Thank you, Mr. Chairman.
    The United States has the highest rate of pediatric 
firearm-related mortality of any nation in the industrialized 
world. More children die in America from firearm incidents than 
anywhere in the industrialized world. Approximately 40 percent 
of homes in America contain at least one firearm. More than 2 
in 5 of all American households with children also have guns, 
and of those about 1 in 4 keeps those guns loaded or unlocked.
    The amendment that I am offering, Mr. Chairman, will save 
children's lives by reducing the senseless tragedies that 
result when children get their hands on improperly stored and 
unlocked guns. Unintentional shootings commonly occur when 
children find an adult's loaded handgun in a drawer or closet 
and, while playing with it, shoot themselves, a sibling, or a 
young friend. Unfortunately, not matter how careful parents 
are, their children are still exposed to the potential 
negligence of a neighbor, relative, or other adult where the 
child visits.
    Mr. Chairman, and to the supporters of this bill, this 
amendment does not undermine this bill. Respectfully, I would 
suggest it actually strengthens it. What it says is if this 
Committee and if this Congress is going to give immunity, as 
this bill provides, that this immunity shall only be provided 
in the instance of children when a manufacturer provides for a 
child safety lock, with the understanding, quite frankly, that 
just because the lock is provided doesn't guarantee that it----
    Ms. Waters. Mr. Keller, are you leaving?
    Mr. Keller. I'll be in the back listening to everything.
    Ms. Waters. We want you to hear this.
    Mr. Wexler.--doesn't provide----
    Chairman Sensenbrenner. The gentleman from Florida has the 
floor, and respect should be given to him unless he yields it 
to someone else.
    The gentleman from Florida.
    Mr. Wexler. Thank you, Mr. Chairman.
    Ensuring that a child safety lock accompanies a new gun 
from the manufacturer takes into the consideration the 
foreseeable dangers associated with the product. Children have 
access to guns. That is an unfortunate fact and unfortunate 
reality in America that leads to tragic results. And although 
there is no guarantee that the owner of a firearm will use a 
safety lock, at least we would be providing them with that 
opportunity. And certainly I would hope, no matter what one's 
feelings and positions are related to guns and to the Second 
Amendment, that we could all agree that, as it relates solely 
to children, that our primary obligation and responsibility is 
to seek the most safe scenario in which our children both live 
and play.
    And this amendment would simply offer what I think is even 
a greater incentive within the confines of this bill, which 
will be to provide immunity, to provide an incentive for 
manufacturers to put these gun locks, these safety locks, 
employ them so that more children will be in safe environments.
    Mr. Conyers. Would the gentleman yield to me, please?
    Mr. Wexler. Yes.
    Mr. Conyers. I want to commend him for the amendment and 
ask unanimous consent to insert, after this discussion, a new 
Harvard University study that shows the direct link between gun 
availability and gun death among children.
    Chairman Sensenbrenner. Without objection, the material 
will be inserted in the record.
    [The information follows:]

    
    
    Chairman Sensenbrenner. The gentleman from Florida.
    Mr. Wexler. I'm done, Mr. Chairman. I yield back.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I oppose this amendment. I urge the Members of the 
Committee also to oppose it. And I yield back the balance of my 
time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Florida, Mr. Wexler. Those in 
favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes----
    Ms. Waters. Rollcall.
    Chairman Sensenbrenner. Rollcall will be ordered. Those in 
favor of the Wexler amendment will, as your names are called, 
answer aye, those opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote? The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 18 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. I have an amendment at the desk, Watt 004.
    Chairman Sensenbrenner. The clerk will report amendment 
number 4.
    The Clerk. Amendment to H.R. 800, offered by Mr. Watt of 
North Carolina. Page 2, line 17, strike,----
    Mr. Watt. I ask unanimous consent to----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Watt follows:]
  


    Chairman Sensenbrenner. The gentleman from North Carolina 
will be recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. This amendment makes the 
prohibitions of the bill applicable only to manufacturers of 
guns and ammunition when their products are criminally used to 
the physical harm or death of another.
    There is no justification, from my vantage point, of 
immunizing sellers, distributors, and dealers of weapons whose 
negligence result in firearms getting into the wrong hands. 
Last term, hearing testimony demonstrated that those in one-on-
one contact with purchasers of firearms and ammunition are 
often aware that there are straw purchases going on. Their 
primary motive is profit. There was also testimony last year 
and this year, regarding reckless conduct of gun shops and 
others entrusted with the responsibility of securing dangerous 
weapons, the Bushmaster rifle used in the D.C. area sniper 
killings was stolen or misplaced by owners who did not take the 
proper precautions or exercise the appropriate duty of care. 
They should not be rewarded for their sloppiness and 
indifference.
    Similarly, we had evidence that recalls of weapons poorly 
manufactured do occur if a person is injured by a defect in a 
weapon prior to its recall, that person should have a remedy in 
the manufacturer's being held responsible for conduct totally 
within its control.
    So I ask my colleagues to support this amendment, and yield 
back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Utah, MR. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. You know, we talked 
about right and fair to some degree in this hearing. Let me 
just tell you what my view of right and fair is. Right and fair 
is when your wife or your daughter is not attacked because the 
rapist stalking her fears that she might have an inexpensive 
and accurate firearm.
    I oppose this amendment, I urge the Members of the 
Committee to also oppose it, and yield back the balance of my 
time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt. Those 
in favor will say aye?
    Opposed, no?
    The noes appear to have it. The noes have it. The amendment 
is not----
    Mr. Watt. Rollcall, Mr. Chairman.
    Chairman Sensenbrenner. A rollcall will be ordered. Those 
in favor of the Watt amendment 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. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    [No response.]
    The Clerk. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Any Members who wish to cast or 
change their vote? The gentleman from California, Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. Anybody else?
    The clerk will report.
    The Clerk. Mr. Chairman, there are 10 ayes and 17 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    There are five amendments left and we do have another 
hearing and we're coming up on votes on the floor. So I----
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. So I think it is time to adjourn 
the Committee.
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. The Committee stands adjourned.
    [Whereupon, at 12:23 p.m., the Committee was adjourned.]



                            BUSINESS MEETING
                              (continued)

                        WEDNESDAY, MAY 18, 2005

    The Committee met, pursuant to notice, at 10:07 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.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, the Committee 
will now consider--will continue consideration on the adoption 
of H.R. 800, the ``Protection of Lawful Commerce in Arms Act.'' 
When the Committee last considered this legislation, the chair 
had moved its favorable recommendation to the full House and 
the bill was considered as read and open for amendment at any 
point. A technical amendment offered by the gentleman from 
Utah, Mr. Cannon, had been agreed to and several other 
amendments had been offered and were defeated.
    We will now return to consideration of amendments to H.R. 
800.
    Are there amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Scott. It's the one in section 4(5)(A).
    The Clerk. Amendment to H.R. 800, offered by Mr. Scott. In 
section 4(5)(A), strike clause (i) and insert the following: an 
action brought against a transferor who transfers a firearm----
    Mr. Scott. Mr. Chairman----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Scott follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott, is recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, in the bill as drafted, a gun 
dealer can be sued if he transfers a firearm in violation of 
the law and is convicted of that crime. This amendment, which I 
will call the O.J. amendment, eliminates the requirement under 
the bill for a conviction before a defendant can be sued and 
substitutes the requirement of proof that the defendant 
accidentally committed the crime whether or not he was 
technically convicted.
    Requiring a conviction before a defendant can be sued for 
his unlawful acts would constitute an extraordinary change in 
traditional civil liability standards. Moreover, such a 
requirement would create bizarre results based on what a 
prosecutor decides to do in a particular case and when he 
decides to do it. A prosecutor may choose not to prosecute a 
particular case for various reasons. This would preclude a 
claim regardless of egregious injuries or how clear the 
liability. Or even if a case is prosecuted, the prosecutor may 
decide to plea-bargain a case, allowing a defendant who has 
illegally transferred many guns to plead guilty to some of the 
transfers and drop the others. It would be an absurd result to 
suggest that only victims of the cases pleaded can sue while 
others cannot.
    Of course, there is always the possibility the case can get 
thrown out because of an unlawful search or seizure or because 
a prosecutor is unable to prove his case beyond a reasonable 
doubt. The case might be lost because a jury was pretty sure 
the defendant was guilty, but not beyond a reasonable doubt.
    Even where there is a conviction, the timing of the 
conviction alone might be dispositive of the claim because 
there is nothing in the bill or the law which tolls the statute 
of limitations in a civil claim pending prosecution and 
appeals.
    Mr. Chairman, this is a dramatic departure from traditional 
civil proceedings. In a lawsuit involving an automobile 
accident, for example, one can be successful if you prove the 
defendant went through the red light. One does not lose the 
case simply because the officer did not give the defendant a 
ticket, or gave him a ticket but did not get a conviction. Even 
if one proves the defendant in fact went through the red light, 
under the theory of this bill a person would lose the case if 
the police officer failed to successfully prosecute the 
defendant.
    If this amendment is adopted, the unlawful transfer would 
still have to be proven in order to pursue the case. Under 
traditional civil law, one would still have to prove the 
defendant violated the law and the violation was the proximate 
cause of the injury. A perfect example of this is the O.J. 
Simpson case, in which Mr. Simpson was found civilly liable 
even though he was not criminally convicted of any murders. 
This is current law and should remain the applicable standard 
if someone's criminal activity causes an injury. He should not 
escape liability merely because he was not technically 
convicted of that particular crime.
    Therefore I urge my colleagues to adopt the amendment and 
yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I oppose this 
amendment.
    Chairman Sensenbrenner. The gentleman is recognized.
    Mr. Cannon. Section 4(5)(A)(i) of H.R. 800 provides that 
the bill doesn't apply to ``an action brought against a 
transferor convicted of an offense under section 924(h) of 
title 18, United States, or a comparable or identical State 
felony law, by a party directly harmed by the conduct of which 
the transferee is so convicted.'' Section 924(h) provides that 
whoever knowingly transfers a firearm knowing that such firearm 
will be used to commit a crime of violence or a drug 
trafficking crime shall be imprisoned by not more than 10 
years, confined in accordance with this title or both.
    So the part of the bill in question allows a lawsuit to 
proceed against someone who is convicted of violating 18 U.S.C. 
section 924(h) if the person to whom he or she illegally 
transferred the firearm did harm and was convicted for causing 
such harm.
    Further, whether or not a transferor's conduct meets the 
exceptions of section 4(5)(A)(i) of H.R. 800, there are a 
variety of other exceptions that would allow a lawsuit against 
such a transferor, namely, the exception of the bill that 
allows lawsuits against those who supply a firearm to someone 
they should know is a dangerous person and against those who 
violate any State or Federal law applicable to the sale or 
marketing of the product if the violation was a proximate cause 
of harm.
    Truly bad actors are not given an out by this bill. We 
should maintain a conviction requirement to prevent an unfair 
situation in which an innocent person could somehow be found 
guilty of a criminal offense without having been convicted 
under appropriate criminal standards, including evidence that 
provides guilt beyond a reasonable doubt.
    I urge my colleagues to oppose this amendment and yield 
back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye? Opposed, no?
    The noes appear to have it. The noes have it. The amendment 
is not agreed to.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Recorded vote?
    Chairman Sensenbrenner. A recorded vote is requested on the 
Scott amendment. Those in favor of agreeing to the Scott 
amendment will, as your names are called, answer aye; those 
opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? The gentleman from Virginia, Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith?
    Mr. Smith. Mr. Chairman, I vote no.
    The Clerk. Mr. Smith, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 19 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you. I have an amendment at the desk, 
number 2.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 800, offered by Mr. Scott of 
Virginia.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Scott follows:]

    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. I would verify with the clerk--is this ``On page 
2, line 11, delete all through line 15''?
    Chairman Sensenbrenner. That is correct. The gentleman is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, this amendment strikes a portion 
of the Findings that refers to a Second Amendment right of 
individuals to keep and bear arms. Despite extensive recent 
discussion and much legislative action with respect to 
regulation, purchase, possession, and transportation of 
firearms, as well as proposals to substantially curtail 
ownership of firearms, there has been a definitive resolution 
by the courts of just what right the Second Amendment protects. 
The Supreme Court has given effect to the dependent clause of 
the Second Amendment in the only case in which it has actually 
directly tested the congressional enactment against 
constitutional prohibitions. The United States Supreme Court 
declared in 1939, U.S. v. Miller, 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 an individual's right to 
bear arms. More specifically, the Court said in Miller 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 has to be interpreted and 
applied with that end in view.
    The significance of a militia--the Court continued--was 
that it was composed of civilians primarily, soldiers on 
occasion. It was upon this force that the State could rely for 
defense and securing of the laws on a force that was comprised 
of people, quote, physically capable of acting in concert for 
the common defense who--and I continue to quote--when called 
for service were expected to appear bearing arms supplied by 
themselves of the kind in common use at that time.
    And therefore, Mr. Chairman, they talked about the shotgun: 
In the absence of any evidence tending to show that the 
possession or use of a shotgun having a barrel of less than 18 
inches in length at this time has some reasonable relationship 
to the preservation or efficiency of a well-regulated militia, 
we cannot say that the Second Amendment guarantees the right to 
keep and bear such an instrument.
    So Mr. Chairman, there is a legislative process to amend 
the Constitution and there are judicial procedures to overturn 
precedents, but neither can be accomplished simply by 
proclaiming a constitutional finding. So I would hope that we 
would delete this so-called constitutional amendment or 
judicial precedent overturning from the legislation.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I oppose this 
amendment. Even the leading liberal scholars on the 
Constitution admit that the Second Amendment to the 
Constitution protects an individual right to keep and bear 
arms. Harvard Law School's Laurence Tribe, in his leading 
treatise on American constitutional law, has stated that the 
Second Amendment confers an individual right to U.S. citizens 
to possess and use firearms in the defense of themselves and 
their homes, a right that directly limits action by Congress or 
by the Executive Branch.
    Yale Law School's Akhil Amar has also written that the 
Second Amendment illustrates that States' rights and individual 
rights, private rights of discrete citizens and public rights 
of the citizenry generally, were sometimes marbled together in 
a single clause.
    The Fifth Circuit Court of Appeals also 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, the 
Fifth Circuit stated that, 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 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.
    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 separated and distinct from the 
people at large. James Madison plainly stated this proposition 
in Federalist No. 46, where he argued that the power of 
Congress under the proposed constitution to raise and support 
armies, in Article 1, Section 8, clause 12, posed no threat to 
liberty because any such army, if misused, would be opposed by 
a militia amounting to near half a million citizens with arms 
in their hands. Madison then noted 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.
    I think this issue is clear, Mr. Chairman, and urge my 
colleagues to oppose this amendment and vote no.
    Thank you. With that, I yield back the balance of my time.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. I move to strike the last word and yield to Mr. 
Scott.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Thank you. The gentleman from Utah mentioned a 
lot of scholars and referred to cases. I have cited at least 
one case and there is a long line of others that cite the 
premise that there is no individual right to bear arms, that 
the right is only to be interpreted in conjunction with a 
militia. Could the gentleman cite the final decision, not on 
appeal, of any case that found that there is in fact an 
individual right to bear arms?
    Mr. Watt. I would yield to the gentleman, Mr. Cannon.
    Mr. Cannon. It is my understanding that the Fifth Circuit 
case has not been appealed, so that's the final decision.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from North Carolina.
    Mr. Watt. He's asking whether you have the name of the 
case, Mr. Cannon.
    Mr. Cannon. Oh, yes, I can----
    Mr. Watt. I yield to Mr. Cannon.
    Mr. Cannon. The Fifth Circuit case is United States v. 
Emerson, which can be found at 270 F.3d 203 (5th Cir. 2001).
    Chairman Sensenbrenner. The gentleman from North Carolina 
yield back?
    Mr. Watt. I yield back.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Mr. Chairman, in the Emerson case, I understand 
that that was not the holding of the case. What the gentleman 
from Utah is referring to is some dicta speculating on the 
meaning of the Second Amendment in a footnote. And the case--
that was not the holding of the case. The fact remains that the 
United States Supreme Court, as of now, all the cases we have 
have held that the Second Amendment right is a collective 
right. And there is some dicta to the contrary, there is some 
speculation in law review articles by various professors that 
the gentleman has named and some others, but the holding of the 
courts has been consistent: It's a collective, not an 
individual, right.
    I yield back.
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. Who seeks recognition? The 
gentlewoman from California, Ms. Waters.
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. I am very pleased that my colleague from 
Virginia created a debate about the Second Amendment. And I 
guess I've heard this question argued for many, many years 
about what was meant by the Second Amendment and whether or not 
the right to bear arms extends to citizens in the way that it 
has evolved here in the United States.
    I would simply like to place something on the record, and 
that's this: My friends who protect the right to bear arms are 
not willing to modify their position in any shape, form, or 
fashion. They do not support moratoriums, they do not support 
doing anything about the importation, they do not support 
dealing with manufacturers, the transfer--nothing. If they feel 
that there is any legislation or public policy on the horizon 
that opens a door in any shape, form, or fashion to limiting 
the firearms in this country, they move very aggressively with 
all of the monied support from the gun lobby to stop it, and 
they put the fear of God in legislators who would be of a mind 
to do something about this proliferation of guns in our 
society.
    But let me remind you that while you come up with 
legislation with mandatory minimum sentencing and death 
penalties for gang members who commit crimes, I want you to 
know that one of the problems is they're armed to the teeth, 
that they have more weapons, more guns, the ability to out-gun 
some of the police forces in some of the small cities and 
towns. But somehow, you maintain your argument that guns don't 
kill, it's the criminals who do--a kind of silly argument in 
order to protect the so-called right to bear arms.
    I just want to remind you that these guns that are on our 
streets are not going to come off the streets unless you're 
willing to open up your minds to doing something about 
containing this proliferation of guns.
    Mr. Cannon. Would the gentlelady yield?
    Ms. Waters. No, I will not.
    Mr. Cannon. I was going to agree with the gentlelady on 
many points.
    Ms. Waters. Well, I have to finish because I've opened up 
this--you can get some time. I've opened up this discussion 
because I want you to have to think about what it is you do or 
you don't do. I want you to think about the contradiction 
between wanting to stop crimes that are committed with guns and 
this fierce defense of the right of individuals to own these 
weapons, the manufacturers to manufacture them no matter who is 
using them and how they're using them. And I would just simply 
say to you, for those of you who really want to do something 
about getting these guns off the street, you really need to 
stop and think about how you can join with others of us, no 
matter what side of the aisle this is on, and say to the gun 
lobby it's time for us to take another step to protect law 
enforcement, to protect American citizens, and to do something 
about these crimes that are being committed with guns.
    Now, I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye? Opposed, no?
    The noes appear to have it.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Scott. Recorded vote?
    Chairman Sensenbrenner. A recorded vote will be ordered. 
Those in favor of the Scott amendment will, as your names are 
called, answer aye; those opposed, no. The clerk will call the 
roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? The gentleman from North Carolina, Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The gentleman from South Carolina, Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. Okay. Does anybody want to try 
again? The clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 21 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Further amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Lofgren. I'd ask unanimous consent that it be 
considered as read.
    Chairman Sensenbrenner. Well, let's see it first.
    Ms. Lofgren. All right.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Amendment to H.R. 800, offered by Ms. Lofgren of 
California. Page 10, line 8, strike ``or''. Page 10, line 19--
--
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Ms. Lofgren follows:]

    
    
    Chairman Sensenbrenner. The gentlewoman will be recognized 
for 5 minutes.
    Ms. Lofgren. Every day, thousands of men and women put 
their lives on the line to serve as America's first line of 
defense. Sadly, many of those brave men and women never make it 
home. According to the FBI, between 1992 and 2001, 594 police 
officers were shot to death. Countless others were injured by 
firearms, like David Lemongello, a former detective from 
Orange, New Jersey, who testified last time Congress considered 
this bill.
    In his testimony, Mr. Lemongello spoke about the night his 
life changed forever. On January 12, 2001, he was shot three 
times after breaking up an armed robbery. His partner was shot 
twice. The gun used to shoot these officers was one of 12 guns 
bought by the same person on the same day from the same dealer. 
The dealer, knowing that the sale was suspicious, called the 
ATF immediately after selling the guns, but he sold them anyway 
and now Mr. Lemongello and his partner must pay for this greed 
for the rest of their lives.
    This bill would protect that gun dealer and destroy Mr. 
Lemongello's right to have his case heard. As he testified in 
2003, Mr. Lemongello is not looking for a law that guarantees 
he will win his case; all he wants is his day in court so he 
can prove to a jury that irresponsible gun dealers should be 
held accountable.
    Mr. Lemongello is not alone. The International Brotherhood 
of Police Officers, the Major Cities Chiefs Association, and 
many other groups and officers oppose this bill because of its 
effect on the rights of law enforcement officers. I ask 
unanimous consent to insert their letter, dated April 12, 2005, 
their letter of opposition into the record.
    Chairman Sensenbrenner. Without objection.
    [The letter referred to follows:]

    
    

    Ms. Lofgren. Thankfully, we did not pass this bill last 
Congress, so Mr. Lemongello was able to obtain a $1 million 
settlement as well as an agreement by the dealer and other area 
pawn shops to implement safer practices to prevent sales to gun 
traffickers. But here we are again considering a bill that 
would protect irresponsible gun dealers at the expense of our 
country's police officers.
    My amendment would exclude from the definition of qualified 
civil liability action lawsuits brought by local, State, and 
Federal law enforcement officers who are shot in the line of 
duty by guns that should never have been on the streets. The 
amendment does not say that gun dealers should be liable simply 
because they sold a gun that was used in a crime, nor does it 
say that the families of all 297 officers shot to death between 
1997 and 2001 should be able to recover. All it says is that 
when a gun dealer sells 12 or 50 or 100 guns to a person who is 
clearly going to turn around and sell those guns on the street, 
that dealer should be held accountable.
    Now, the proponents of this bill may argue that the 
negligence per se exception protects police officers because it 
allows suits against dealers who violate other statutes, like 
the Brady Act. But that is simply not true. It would not have 
protected Mr. Lemongello, who brought his suit in a State that 
does not recognize the doctrine of negligence per se.
    I would also point out that this bill steps all over 
States' rights. As we've seen, with the Chiavo case and other 
tort reform efforts, the leadership of the House is all too 
eager to ignore principles of federalism when it suits their 
ideological needs. I believe that this bill is just another 
example of that principle.
    I oppose the bill, but if we are going to pass it, at least 
we should make sure that the men and women who put their lives 
on the line for us every day are not trampled along with 
States' rights.
    Mr. Scott. Would the gentlelady yield?
    Ms. Lofgren. I would yield to the gentleman, Mr. Scott.
    Mr. Scott. I would ask the gentlelady, if this amendment 
passes, the law enforcement officer would still have to bring a 
suit under normal law? This doesn't give him any advantages----
    Ms. Lofgren. That's correct.
    Mr. Scott.--but he would have to prove the case. And very 
few of these cases are ever successful, as I understand it.
    Ms. Lofgren. Reclaiming my time. That is in fact the case. 
All this does is guarantee that police officers who have been 
injured have an opportunity to bring their case, have their day 
in court under existing law. And I think that is the least that 
we could do for those who put their lives on the line for us 
every day.
    And I would yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman.
    I oppose this amendment. It would end up hurting the very 
people it intends to protect. The police themselves are reliant 
on firearms manufacturers to supply them with reliable and 
accurate guns that can best protect them in the line of fire. 
The best and most reliable guns are not likely to be those 
designed under requirements imposed by rogue judges or personal 
injury lawyers in firearms lawsuits. According to an article in 
the Wall Street Journal, police representatives agree with 
their constituents--that is, the police--would resist any 
directive to favor guns based on a manufacturer's willingness--
--
    We can just wait for the buzzer.
    Chairman Sensenbrenner. Will the gentleman yield back?
    Mr. Cannon. If I could just finish the sentence after the 
buzzer, I will be happy to yield back very quickly.
    Choosing a gun is a health/safety issue, says Jack Roberts, 
president of the Southern States Police Benevolent Association, 
which represents 18,000 officers in Georgia and eight other 
States.
    This is about protecting our police, and I oppose the 
amendment and encourage my colleagues to read it, think it 
through, and vote with me in opposition to this amendment.
    Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentlewoman from California, Ms. Lofgren. Those 
in favor will say aye? Opposed, no?
    The noes appear to have it. The noes have it.
    Ms. Lofgren. Mr. Chairman, I request a recorded vote.
    Chairman Sensenbrenner. Okay. A recorded vote will be 
ordered, and we will recess following the recorded vote. Those 
in favor will, as your names are called, answer aye; those 
opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    [No response.]
    The Clerk. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? The gentleman from Virginia, Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 20 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    The Committee stands adjourned.
    [Whereupon, at 11:41 a.m., the Committee adjourned.]



                            BUSINESS MEETING
                              (continued)

                        WEDNESDAY, MAY 25, 2005

    The Committee met, pursuant to notice, at 10:02 a.m., in 
Room 2138, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will come to order. A 
working quorum is present.
    Pursuant to notice, the Committee will now continue 
consideration on the adoption of H.R. 800, the ``Protection of 
Lawful Commerce in Arms Act.''
    When the Committee last considered this legislation, the 
Chair had moved its favorable recommendation of the House, then 
the bill was considered as read and open for amendment at any 
point. A technical amendment offered by the gentleman from 
Utah, Mr. Cannon, had been agreed to, and several other 
amendments had been offered and defeated.
    We will now return to consideration of amendments to H.R. 
800. Are there further amendments?
    The gentleman from Maryland, Mr. Van Hollen?
    Mr. Van Hollen. Thank you, Mr. Chairman. I have an 
amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Mr. Chairman, I have two amendments.
    Mr. Van Hollen. This would be I hope marked Amendment 
Number One. It's on page--strikes lines 23 through 25 and 
inserts.
    The Clerk. Amendment to H.R. 800 offered by Mr. Van Hollen 
of Maryland and Mr. Meehan of Massachusetts. Page 8, strike 
lines 23 through 25 and insert the following:
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Van Hollen follows:]

    
    

    Chairman Sensenbrenner. The gentleman from Maryland will be 
recognized for 5 minutes.
    Mr. Van Hollen. I thank you, Mr. Chairman, and I offer this 
amendment, together with my colleague, Mr. Meehan of 
Massachusetts. This is a very simple, straightforward 
amendment.
    What it says is that gun dealers and manufacturers will be 
held to the same standard of conduct that everybody else in the 
United States of America is held to. It requires everybody play 
by the same rules that everybody is--doctors, nurses, all of us 
when we're driving on the road--a standard of reasonable 
conduct, and what it does is it removes the provision in the 
bill that gives gun dealers total immunity from any 
repercussions for their negligent conduct.
    I represent an area that was the area where we saw many 
victims of the sniper attacks of 2002. I have attended memorial 
services with many grieving family members, and I would remind 
the Committee that back in 2002, when this--when the House was 
taking up this bill on the floor of House, and the sniper 
shootings occurred, the House has the decency to take this bill 
off the floor, out of deference to the victims, because we 
understood that the consequences of this bill would be making 
them victims twice--first, victims of shootings and families 
who grieve for their family members, and second that the impact 
of this bill would be to deny the families of the victims their 
day in court with respect to civil damages.
    We have now seen that the perpetrators of those terrible 
crimes have received sentences in Virginia. One of them 
received a death sentence. The juvenile has a sentence of life 
imprisonment.
    What this bill does is totally immunize any other actors 
whose negligent conduct may have contributed to those deaths 
that we saw in this area. And while the House took that bill 
off the floor 2 years ago, we now see it before. The irony is 
that in the meantime, those victims did go to court. They did 
receive some civil compensation from the Bulls Eye Store that 
sold those weapons in Tacoma, Washington. But if this bill had 
passed that day when the House took it up in 2002, those 
victims would not have been able to see their day in court.
    So, Mr. Chairman, Members of the Committee, I just ask that 
the Committee consider fully what we're doing, which is 
creating a separate standard for one industry, a standard that 
we don't have for any other industry in America, exempting them 
from negligence. We hold everybody else in this country to a 
standard of care or reasonable conduct, and yet we're saying in 
this case gun dealers, gun manufacturers are in a unique 
category. We're going to make them the most protected class in 
America, and I just think that's wrong and what this amendment 
does it restore----
    Mr. Conyers. Would the gentleman yield?
    Mr. Van Hollen. Yes, I would be happy to yield.
    Mr. Conyers. I want to commend the gentleman on his 
amendment, because I have not heard any justification for 
creating a second tier of protection against negligence for gun 
dealers exclusively. I think this is a serious mistake, one 
that is being propelled by a small number of people and that 
has no likelihood of making anyone safer for sure and also it 
may, in fact, make dealers and manufacturers even less 
responsible than they were before; and so I think that the 
gentleman's amendment taking out language and putting in his 
own is a very important improvement to the measure, and I 
support it. Thank you.
    Mr. Van Hollen. I thank you, Mr. Conyers.
    Let me--just in closing, Mr. Chairman, I think that that's 
exactly right. I mean--so we know the whole idea of creating a 
standard of reasonable care, of reasonable conduct is to hold 
people to the standards of a reasonable person. And what we're 
saying in this case is we're not going to hold gun dealers to 
the same kind of standard we hold any other person to with 
respect to negligence. We are exempting them from the 
consequences of their negligent conduct. I can't understand why 
it would possibly want to do that. We should allow juries under 
the specific facts of the case to determine whether someone has 
met the standards of reasonable care and conduct in a 
particular case and reach a judgement rather than before 
considering the facts saying up front you are immune from the 
consequences of your action.
    Mr. Chairman, there is no doubt that this will cause some 
gun dealers to relax further their efforts to make sure that 
guns don't get into the hands of criminals, and irony of this 
we're talking, according to statistics about just a very few--
--
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Van Hollen.--very few number of gun dealers, and I 
would think--hope that the Committee would adopt the amendment. 
Thank you.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I want to point out 
that I think the gentleman from Maryland has made quite a clear 
case here. I appreciate that. Of course, the point of this bill 
is to keep frivolous litigation from bankrupting gun companies, 
and the way you do that is by being clear about what negligence 
is, which is described in the bill, both negligent entrustment 
and negligence per se. This amendment is what the bill is all 
about. And I remind the panel that we have 46 Democrats who 
have co-sponsored this bill, with a total of 255 co-sponsors, 
and so I would urge my colleagues to oppose this amendment, and 
yield back.
    Chairman Sensenbrenner. The question is on the adoption of 
the amendment offered by the gentleman from Maryland, Mr. Van 
Hollen. Those in favor will say aye.
    Chairman Sensenbrenner. Opposed no.
    Chairman Sensenbrenner. Noes appear to have it. The noes 
have it. The amendment is not agreed to. Are there further 
amendments.
    The gentleman from Maryland, Mr. Van Hollen.
    Mr. Van Hollen. I would ask for a rollcall vote.
    Chairman Sensenbrenner. A recorded vote is requested. Those 
in favor of the Van Hollen amendment will, as your names are 
called, answer aye; those opposed no. And the Clerk will call 
the role.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    [No response.]
    The Clerk. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote. The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change. The gentleman from Iowa, Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the Clerk will report.
    The gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. Anybody else wish to cast or change 
their vote?
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters. Does the gentlewoman from California wish to cast a 
vote?
    Ms. Waters. I said aye.
    Chairman Sensenbrenner. Okay.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. Anybody else wish to cast or change 
a vote?
    The Clerk will try again to report.
    The Clerk. Mr. Chairman, there are 8 ayes and 19 noes.
    Chairman Sensenbrenner. The amendment is not agreed to. Are 
there further amendments?
    Ms. Sanchez. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Sanchez?
    Ms. Sanchez. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 800 offered by Ms. Sanchez of 
California. Page 8, after line 22, insert the following:
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Ms. Sanchez follows:]

    
    
    Chairman Sensenbrenner. The gentlewoman is recognize for 5 
minutes.
    Ms. Sanchez. Thank you. Mr. Chairman, this is a narrowly 
drawn amendment that protects victims of domestic violence. 
Presently, Federal law makes it a crime to sell a firearm to a 
person who has a misdemeanor conviction in domestic violence.
    However, if H.R. 800 becomes law, gun sellers who break the 
law and sell guns to persons with domestic violence convictions 
will be immune from civil liability. Let me repeat that: if 
H.R. 800 becomes law, gun sellers will be immune from civil 
lawsuits, even though they have committed a crime.
    I don't know about you, but I think that this would be a 
travesty for the thousands of women who are terrorized by 
abusive men. It is both an insult and an threat to their 
safety.
    My amendment, which is narrowly drawn, will carve out an 
exception to H.R. 800's overall ban on lawsuits against gun 
sellers. It will allow the person directly harmed by a gun 
illegally sold to a person with a domestic violence conviction 
to bring a civil lawsuit against the person who made the 
illegal gun sale.
    This amendment makes sense. It strikes a good balance 
between protecting women from violence and appeasing the 
supporters of H.R. 800 who believe there are excessive lawsuits 
against the gun industry. Under my amendment only a party 
directly harmed by the illegal gun sale can sue, meaning that 
only the person who is shot and no one else can sue the gun 
seller. That I believe is a very fair compromise.
    Unfortunately, there are no women on the other side of the 
aisle to give my Republican colleagues a female perspective on 
my amendment. But I ask that everyone on the opposite side of 
the aisle who might oppose this amendment to imagine your 
daughter, your niece, or a female friend shot by a gun 
illegally sold to someone with a history of domestic violence. 
Then imagine having to tell them that they can't seek civil 
damages for their injuries from the person who made the 
criminal gun sale.
    I don't think that anyone in this room wants to give that 
message to a woman that they care about. That is why I 
encourage every Member of this Committee who believes in 
protecting women from serious injuries and believes in keeping 
guns out of the hands of persons with domestic violence 
convictions to vote for my amendment.
    Protecting women is more important than granting a sweeping 
immunity to gun companies. I thank the Chairman, and I yield 
back.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr. Cannon. Thank you, Mr. Chairman. I want to again 
congratulate the gentlewoman from California for an elegant and 
concise presentation, and I want to assure her that I believe 
everyone on this Committee shares the concern about violence to 
women.
    Let me just point out that the bill deals with this issue 
and allows lawsuits to go forward when there's a violation of 
any State or Federal law that proximately causes the injury.
    This is part of current law today. I would urge my 
colleagues to opposed this amendment, vote against it.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. I want to congratulate the gentlelady from 
California for her amendment because it would guarantee that 
dealers and manufacturers of guns would not be shielded from 
liability when they recklessly sell guns to individuals 
convicted of domestic violence offenses in violation of the 
Brady Act.
    Now, the need for this amendment is pretty clear. Guns and 
domestic violence combine to make a lethal combination, 
injuring and killing women in this country every single day. In 
1998, more than four times as many women were murdered with a 
gun by their partners than were killed by any other person--
stranger or by any other method. If this fact isn't disturbing, 
consider in each year nearly one-third of all women murdered 
are killed by a current or former partner and guns are used in 
two-thirds of these domestic homicides.
    I don't want to shield dealers and manufacturers of guns 
from liability when we have such a clear record of the danger 
of this combination between partners and homicides that occur 
with guns. An average of 808 women are shot and killed annually 
by their partners or acquaintances.
    The simple fact of the matter is that the presence of a gun 
dramatically increases the chance that a domestic violence 
incident will end in murder. In one study, in Atlanta, it was 
found that the family in intimate assault incidents involving 
guns were 12 times more likely to result in death than those 
not involving guns.
    Some of you remember the Lautenberg Amendment, which went 
into effect in 1996, which prohibits anyone who's been 
convicted of a domestic violence act from purchasing a gun, and 
it was enacted because Members of this body fully appreciated 
the harm that would likely ensue from the distribution of 
dangerous weapons to domestic offenders.
    Although criminal enforcement of the Lautenberg Amendment 
is critical, we also need the backstop of civil liability, and 
this is where the Sanchez amendment comes in.
    It would seem to me the last thing we would want to do is 
shield dealers and manufacturers from this civil liability, and 
it's for this reason I support the bill and commend the 
gentlelady from California for offering the amendment at this 
time.
    I yield back my time.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I support the amendment. If this 
amendment doesn't pass, the transferor could have admitted that 
he violated that section as long as he wasn't convicted. The 
underlying bill requires a conviction. He can knowingly do it, 
and if he plea bargained away everything else expect this 
particular claim, he has no liability,.
    I would hope that we would adopt the amendment so that 
people who knowingly violate section 922(d)(9) of title 18, can 
be held civilly responsible for those actions, and not have to 
wait for a conviction before that liability attaches.
    I yield back.
    Chairman Sensenbrenner. The question is on the adoption of 
the amendment offered by the gentlewoman from California, Ms. 
Sanchez. Those in favor will say aye.
    Mr. Conyers. Aye.
    Chairman Sensenbrenner. Opposed no.
    Chairman Sensenbrenner. The noes appear to have it.
    Ms. Sanchez. Mr. Chairman, I ask for a recorded vote on 
that.
    Chairman Sensenbrenner. A recorded vote is requested.
    The question is on agreeing to the amendment offer by the 
gentlewoman from California, Ms. Sanchez. Those in favor will 
as your names are called answer aye; those opposed no.
    And the Clerk will call the role.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their vote. The gentlewoman from California, Ms. 
Waters.
    Ms. Waters. Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their vote. If not, the Clerk will 
report.
    The Clerk. Mr. Chairman, there are 10 ayes and 21 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments?
    The gentleman from Maryland, Mr. Van Hollen.
    Mr. Van Hollen. Thank you, Mr. Chairman. Well, thank you, 
Mr. Chairman.
    I have an amendment at the desk.
    Chairman Sensenbrenner. That static is not caused by the 
Republicans just to make the record clear. The Clerk will 
report the amendment.
    The Clerk. Amendment to H.R. 800 offered by Mr. Van Hollen 
of Maryland, Page 11, line 3, insert the----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment of Mr. Van Hollen follows:]

    
    
    Chairman Sensenbrenner. The gentleman from Maryland is 
recognized for 5 minutes.
    Mr. Van Hollen. Thank you, Mr. Chairman. There's a 
provision in the bill on negligent entrustment. It says that 
negligent entrustment includes the supplying of a qualified 
product by a seller for use by another person when the seller 
knows or reasonably should know the person to whom the product 
is supplied is likely to or does use the product in a manner 
involving unreasonable risk of physical injury to the person of 
others.
    What this amendment does is makes it absolutely clear that 
if the dealer knows that the individual who walked into the gun 
store is on the violent gang and terrorist organization watch 
list maintained by the Attorney General of the United States, 
and that person goes out and commits a crime with that gun that 
the gun dealer can be held civilly liable under this 
legislation. It's simple as that. If you know, if you know and 
have knowledge of the fact that somebody is on that terrorist 
watch list or is a member of a violent gang and on that watch 
list, you are covered by the negligent entrustment provisions 
of this legislation, and may be held civilly liable if that 
person then goes and commits a crime with that gun. It's as 
simple as that, Mr. Chairman.
    I urge adoption of the amendment.
    Chairman Sensenbrenner. Does gentleman yield back?
    Mr. Van Hollen. Yes, I yield back.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon.
    Mr Cannon. Thank you, Mr. Chairman. May I first inquire, do 
we have an idea on the Committee of how many amendments we're 
expecting on this bill?
    Mr. Chairman?
    Chairman Sensenbrenner. Is this the last amendment?
    The gentleman from Utah may proceed.
    Mr. Cannon. Thank you.
    Thank you. I urge my--in the first place, let me point out 
that the gentleman was very clear, very concise in his 
statement. This is a simple difference in philosophy here, and 
I think that the vast number of co-sponsors of this bill would 
agree that the burden here should be on the Government to 
identify people and noy create a vague standard that could be 
used again to destroy gun manufacturers with lawsuits that 
don't have clarity, but cost a great deal of money.
    The FBI already checks its violent gang and terrorist 
organization file as part of every national instant criminal 
background check in the NIC system, so I encourage my 
colleagues to oppos this amendment and vote no.
    Thank you, Mr. Chairman. I yield back.
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mayor 
Weiner.
    Mr. Weiner. From your mouth to God's ears, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. I am puzzled by the opposition to the bill--to 
the amendment. The amendment says if you know, if you know, if 
you know willfully and knowingly provide a weapon to a gang 
member or a terrorist, then you're liable. Yeah. Sure. It's the 
Government's job to try to do the best they can and we can to 
track them down. But if someone presents themselves to sell--to 
purchase a gun, the seller, under the gentleman's amendment, 
knows they're a member of a violent gang, knows they're a 
member of terrorist organization, you still want to shield them 
from liability?
    I mean I have to tell you this is preposterous. I mean----
    Mr. Cannon. Would the gentleman yield?
    Mr. Wiener. Certainly.
    Mr. Cannon. The bill does already make it--allow for a 
lawsuit for negligent entrustment, which is what the gentleman 
is currently talking about.
    Mr. Wiener. Right.
    Mr. Cannon. So it is--it's already there. In other words, 
the concern that you're raising is in the bill and covered by 
the bill as it stands----
    Mr. Wiener. Right. If I could just reclaim my time. But the 
amendment makes it even more precise that if the name of the 
person appears in a violent gang and terrorist organization 
file, maintained by the Attorney General, and the person 
subsequently uses the qualified product in the commission of 
the crime--the idea is that it just says if they're on this 
list, and the seller knows that they're on the list, what 
possible concern would that raise if you--if you're on--if it's 
not willful, and it's not done with knowledge of the seller, 
then you would not have a problem.
    I mean look, you know, let's figure--let's cast this in a 
broader scope.
    This is the first time that Congress has taken away a 
common law right of action, offering no remedy in return. This 
is an attempt by some to take that very small percentage of 
dealers who are causing so many of the problems and hold them 
up to some scrutiny, and at this point, before I yield to Mr. 
Van Hollen to respond further, if I can get unanimous consent 
to place into the record the position paper of the City of New 
York on H.R. 800.
    Chairman Sensenbrenner. Without objection.
    [The information follows.]

    
    
    Mr. Weiner. And the legal memorandum by the Corporation 
Counsel of the City of New York.
    Chairman Sensenbrenner. Also without objection.
    [The information follows.]

    
    
    Mr. Weiner. And I yield the balance of my time to Mr. Van 
Hollen.
    Mr. Van Hollen. I thank my colleague, and I would just say 
that the argument that this is already somehow included under 
negligent entrustment, I don't think carries water.
    Mr. Cannon, in your initial response, I thought you 
suggested that this would add an additional requirement on the 
gun dealer and clearly the language, as it is, does not make it 
clear that somebody would be negligent if they sold a gun under 
these circumstances.
    You know, if you're on the terrorist watch list, you're not 
allowed to board an airplane in the United States of America. 
And it seems to me if you walk into the gun store and the gun 
owner knows, has knowledge of the fact that you are on that 
list, sells you a gun, and you go out a terrorist act, that at 
the very least we should hold the gun dealer responsible 
civilly for negligence. If that's not negligent entrustment, 
I'm not sure what is, and what this is doing is making it 
absolutely clear that negligent entrustment covers that 
particular area because in response to the earlier question I 
think there was some doubt cast upon whether negligent 
entrustment would, in fact, cover this. And so I think we want 
to make it absolutely clear that if you knowingly sell a gun to 
someone who's on a terrorist watch list, and they go out and 
commit a terrorist act, that's negligence under this bill.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from New York.
    Mr. Weiner. I yield the balance of my time to Mr. Schiff.
    Chairman Sensenbrenner. The gentleman from California.
    Mr. Schiff. I thank the Chairman. I may seek my own time. 
I'm not sure how much time is left for Mr. Weiner.
    But I don't understand the objection to the amendment 
raised by my colleague, because the initial part of his 
objection was that this would impose some new obligation on the 
seller and then the later objection from my colleague was that 
this was superfluous because it wouldn't impose any new 
requirement on the seller.
    It can't be both, and I just can't, for the life of me, 
understand why we would want to immunize a gun maker or gun 
dealer from knowingly selling a weapon to someone who's a gang 
member or a terrorist, and is identified as such by the 
Attorney General. I mean imagine how the cross examination 
would go in a case brought against the gun maker, which I guess 
you're now taking the position would be liable under this bill, 
where the gun maker is asked, now I assume you didn't 
deliberately sell this gun to a terrorist on the Attorney 
General's list.
    Chairman Sensenbrenner. Without objection, the gentleman 
from New York will be given 2 additional minutes.
    The gentleman from California may proceed.
    Mr. Schiff. Thank you, Mr. Chairman. Now, I assume you 
didn't knowingly, deliberately sell this gun to someone who was 
on the Attorney General's terrorist watch list and have the gun 
dealer say, well, actually, I did. I knew he was on the list. I 
sold him the gun, but thanks to the U.S. Congress, I'm immune. 
And you cannot proceed against me further, and certainly if the 
attorney representing that gun dealer wasn't negligent, they 
would make that argument.
    And the proof of the pudding would be the vote on this 
amendment. Are we going to immunize someone from knowingly, 
deliberately, willfully selling a gun to someone who's on the 
Attorney General's terrorist watch list? Has it come to that?
    I mean I find it extraordinary enough that of all the 
people that manufacture things out there that we put more 
effort to immunizing gun makers than any manufacturers of any 
other product except I guess people that make fast food, as 
we'll take up later.
    But nonetheless, have we really gotten to the point where 
we're going to say that someone who knowingly and deliberately 
sells a gun to a known terrorist on the watch list we'd 
immunize them as well. I can't believe we're about to do that. 
I hope my colleague will rethink his opposition.
    I know there's a desire for the purity of the bill and not 
to allow any amendment because, of course, these bills are 
immaculately conceived and cannot be improved by the minority, 
but here's one case, at least one case, where they could be 
improved by the minority, and I hope that my colleague will 
withdraw his opposition.
    I yield back, Mr. Chairman.
    Mr. Lungren. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from California.
    Mr. Lungren. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. With respect to the comments just made by the 
gentleman, he interchangeably used the word manufacturer, 
maker, and seller.
    As I read the amendment, it specifically talks to the 
seller knowing this at the time he sells, and so forth, as 
opposed to the manufacturer or maker. Is that correct?
    Mr. Weiner. Will the gentleman yield?
    Mr. Lungren. Yes.
    Mr. Weiner. The gentleman is correct. So the amendment is 
even narrower than I am imagining. So I guess you--a 
manufacturer still could give a gun to a terrorist----
    Mr. Lungren. No. But I'm just trying--I'm actually trying 
to find out exactly what the amendment is and the gentleman 
characterized it in a certain way.
    This amendment, as I understand it, talks about a seller 
who knows this at that time, and then the product that is sold 
is utilized in the commission of a crime. That is the essence 
of the amendment, as I understand it.
    Mr. Weiner. Will the gentleman yield to the author of the 
amendment?
    Mr. Schiff. Yes.
    Mr. Van Hollen. I'd be happy to. If there's any ambiguity 
in the gentleman's mind, it's in the original language that was 
put forward by the Committee here, because we just adopted the 
reference to the seller that is already used in the language on 
the section on negligent entrustment.
    Mr. Lungren. I thank the gentleman.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Lungren. I yield back.
    Chairman Sensenbrenner. Questions on the amendment offer by 
the gentleman from Maryland, Mr. Van Hollen? Those in favor 
will say aye.
    Chairman Sensenbrenner. Opposed no.
    Chairman Sensenbrenner. The noes appear to have it. The 
noes have it. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Van Hollen. I would like a rollcall.
    Chairman Sensenbrenner. A rollcall will be ordered.
    The question is on agreeing to the amendment offered by the 
gentleman from Maryland, Mr. Van Hollen.
    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. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith of Texas. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. Pass.
    The Clerk. Mr. Lungren, pass. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    Mr. Boucher. No.
    The Clerk. Mr. Boucher, no. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change your vote? The gentleman from California, Mr. 
Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. Further Members in the chamber--the 
gentleman from Massachusetts, Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their vote? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 10 ayes and 20 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    There being no further amendments, without objection the 
amendment----
    Excuse me, a reported quorum is present. The question 
occurs on the motion to report the bill H.R. 800 favorably, as 
amended. All in favor will say aye? Opposed, no?
    The ayes appear to have it. The ayes have it, and the 
motion to report favorably----
    Mr. Nadler. Mr. Chairman, do we want to vote on it?
    Chairman Sensenbrenner. Does the gentleman from New York 
want a vote?
    Mr. Nadler. Yes. [Laughter.]
    Chairman Sensenbrenner. The chair is always happy to 
accommodate the gentleman from New York.
    The question is on reporting the bill H.R. 800 favorably, 
as amended. Those in favor of the motion will, as your name is 
called, answer aye; opposed, no. 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?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, 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. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, 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. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. 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. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, 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?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? The gentleman from Massachusetts, Mr. 
Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. Any further Members in the chamber 
who wish to cast or change their vote? If not, the clerk will 
report.
    The gentleman from Florida, Mr. Feeney?
    Mr. Feeney. No. Um, yes. [Laughter.]
    The Clerk. Mr. Feeney, aye.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. The clerk will try again to report.
    The Clerk. Mr. Chairman, there are 22 ayes and 12 noes.
    Chairman Sensenbrenner. And the motion to report favorably, 
as amended, is agreed to. Without objection the bill will be 
reported favorably to the House in the form of a single 
amendment in the nature of a substitute incorporated in the 
amendments to the document.
    Without objection, the staff is directed to make any 
technical and conforming changes and all Members will be given 
2 days, as provided by the House rules, in which to submit 
additional consenting, supplemental, or minority views.
    [Intervening business.]
    The Chair would like to thank the Members and staff for 
their patience. We have completed a very ambitious agenda 
today. There will be no markup tomorrow because the agenda has 
been completed, and the Committee stands adjourned.
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    H.R. 800, the ``Protection of Lawful Commerce in Arms Act'' 
prohibits civil liability for the firearms industry arising 
from the ``criminal or unlawful misuse'' of their products by 
the injured party or others. Proponents of the measure argue 
that such legislation is necessary in order to protect against 
``frivolous'' lawsuits. However, at a time when more than 
30,000 gun deaths occur each year, this bill represents nothing 
more than an unwarranted and unjust special interest giveaway 
to the powerful gun lobby and a shameful attack on the legal 
rights of countless innocent victims of gun violence. Never 
before has a class of persons harmed by the dangerous conduct 
of others been wholly deprived of the right to legal recourse. 
For these reasons, and those set out below, we respectfully 
dissent.

                           General Background

    Over the last three years, more than thirty-four 
governmental entities have filed suit against gun 
manufacturers, distributors and trade associations in an 
attempt to bring to eliminate marketing and distribution 
schemes that place guns in the hands of criminals. Relying on 
public nuisance theories and claims of product liability 
violations, municipalities have targeted the gun industry for 
displaying an utter indifference to the safety of their 
communities through the faulty design and sale of firearms. At 
the close of the 108th Congress, of the thirty-four suits, 
eighteen had won favorable rulings on the legal merits of their 
claims; seven had failed on the merits; five were battling 
motions to dismiss; and four had their claims dismissed.
    H.R. 800 was presumably introduced in response to these 
lawsuits, as were its predecessors.\1\ In general, the bill 
prohibits all 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 terms of the bill, only six 
specified causes of action would be permissible against 
protected members of the gun industry: (1) transfers in 
violation of 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 
manufacturer of the product when used as intended.\2\
---------------------------------------------------------------------------
    \1\ During the 108th Congress, H.R. 1036, the ``Protection of 
Lawful Commerce in Arms Act'' was introduced on February 27, 2003. 
Prior to that, in the 107th Congress, H.R. 123, the ``Firearms Heritage 
Protection Act of 2001'' and H.R. 2037, the ``Protection of Lawful 
Commerce in Arms Act'' were both introduced.
    \2\ H.R. 800, Sec. 4. DEFINITIONS, (5) Qualified civil liability 
action.--(A)(i)-(v) at 7-8.
---------------------------------------------------------------------------
    Supporters of H.R. 800 claim that the legislation, if 
enacted, would only block `frivolous' lawsuits from being 
brought against gun sellers in an effort to bankrupt the gun 
industry. Unfortunately, not only is this assertion a gross 
misrepresentation of the bill, it also is an insult to gun 
violence victims who have sought justice in the courts.

 I. The Bill Immunizes the Firearms Industry From Liability Even When 
  They Knowingly Sell to Suspected or Known Terrorists or Gang Members

    H.R. 800 is drafted in such an overly-broad fashion that it 
would irresponsibly shield gun dealers and distributors from 
liability, even when they knowingly transfer firearms to 
suspected or known terrorists or gang members. The ease with 
which these individuals are obtaining dangerous firearms is 
growing at an alarming rate. According to a recently released 
Government Accountability Office (``GAO'') report, over the 
course of a nine-month span last year, a total of fifty-six 
(56) firearm purchase attempts were made by individuals 
designated as known or suspected terrorists by the federal 
government. In forty-seven (47) of those cases, state and 
federal authorities were forced to permit such transactions to 
proceed because officials were unable to find any disqualifying 
information (such as a prior felony conviction or court-
determined `mental defect') in the individual applicant's 
background. Under current law, neither suspected nor actual 
membership in a terrorist organization is a sufficient ground, 
in and of itself, to prevent such a purchase from taking place. 
Now, as a result of H.R. 800, unscrupulous dealers will be 
protected from civil liability as well.

  II. 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 injuries 
from firearms 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.\3\ Under H.R. 800, 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. 800 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, wilful and the proximate cause of the 
harm for which relief is sought.
---------------------------------------------------------------------------
    \3\ Former police officer, David Lemongello, who testified at the 
March 15, 2005 hearing of the Subcommittee on Commercial and 
Administrative Law 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 an in 
bulk, cash sale of 12 firearms.
---------------------------------------------------------------------------

   III. 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. 800 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 products liability actions. Under this bill, gun 
manufacturers face no liability for failing to implement safety 
devices that would prevent foreseeable injuries, even when the 
accident involves a child or some other person not permitted to 
handle a firearm. This ``unlawful use'' under the bill would 
insulate the manufacturer from avoidable accidental injury.

IV. 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.'' \4\ Regrettably, it also disregards 
over sixty years of U.S. Supreme Court precedent which has 
interpreted the right to bear arms to exist based upon ``some 
reasonable relationship to the preservation or efficiency of a 
well regulated militia.'' \5\
---------------------------------------------------------------------------
    \4\ U.S. Const. Amend II.
    \5\ U.S. v. Miller, 307 U.S. 174, 178 (1939).
---------------------------------------------------------------------------
    In the only substantive discussion of the Second Amendment 
by the U.S. Supreme Court, the Court found the amendment does 
not ``guarantee[] the right to keep and bear'' sawed-off 
shotguns or other weaponry that ``is not part of the ordinary 
military equipment'' or the use of which would not ``contribute 
to the common defense.'' \6\ In fact, the Court explicitly 
linked the Second Amendment to Congress's power to ``provide 
for calling forth the Militia'' and to ``provide for 
organizing, arming, and disciplining, the Militia. . . .'' \7\
---------------------------------------------------------------------------
    \6\ Id. (citing Aymette v. Tennessee, 21 Tenn. (2 Hum.) 154, 158-59 
(1840)).
    \7\ Id. (quoting U.S. Const. art. I, Sec. 8, cls. 15, 16).
---------------------------------------------------------------------------
    It should be noted that in reaching its decision, the 
Miller Court relied on two earlier Supreme Court cases that 
also found no strict individual right of the people to keep and 
bear arms. In the first, Presser v. Illinois, the Court held 
that the Second Amendment operates only as a restriction on the 
powers of the federal government, and does not give rise to 
individual rights.\8\ Shortly thereafter, and in similar 
fashion, the Court in Robertson v. Baldwin, determined that 
restrictions on the manner of carrying weapons also do not 
violate the Second Amendment.\9\
---------------------------------------------------------------------------
    \8\ Id. at 265.
    \9\ Id. at 281-82.
---------------------------------------------------------------------------

V. The Narrow Exceptions in H.R. 800 Will Deprive Gun Violence Victims 
   of Their Legal Rights in Cases Involving a Wide Range of Industry 
                               Misconduct

    H.R. 800 sets a new legal standard that is both 
unprecedented and impossibly high. The bill 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.'' \10\ Liability law 
generally hold that persons and companies may be liable for the 
foreseeable consequences of their wrongful acts, including the 
foreseeable criminal conduct of others.
---------------------------------------------------------------------------
    \10\ See H.R. 800, supra note 2.
---------------------------------------------------------------------------
    In the last two years alone, the Supreme Court of Ohio and 
appeals courts in New Mexico, Illinois and New Jersey 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. The New Mexico Court of Appeals recently noted that, 
in a case involving an accidental shooting by a teenager, 
``[s]uppliers are responsible for risks arising from 
foreseeable uses of the product, including reasonably 
foreseeable unintended uses and misuses.'' 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 intentional 
attack on the legal rights of such victims.\11\
---------------------------------------------------------------------------
    \11\ Currently, the firearms-related death rate for children under 
fifteen in the United States is nearly twelve times higher than that of 
the other twenty-five industrialized nations combined. ``Rates of 
Homicide, Suicide, and Firearm-Related Death Among Children--26 
Industrialized Countries,'' Morbidity and Mortality Weekly Report, Vol. 
46, no. 5, Centers for Disease Control and Prevention, February 7, 
1997. Too many of these deaths could have been prevented had gun 
manufacturers included perfectly feasible safety devices. Under 
generally accepted principles of products liability law, a manufacturer 
can be held liable for introducing a firearm to the public that is not 
safe in foreseeable circumstances--and children are handling unsafe 
firearms in epidemic proportions. Under H.R. 800, a gun manufacturer 
has virtually no incentive for including safety devices on firearms, 
even when guns will be within easy reach of children. The possession 
and use of a gun by a minor, however foreseeable, is technically 
unlawful possession--and H.R. 800 would shield the manufacturer from 
liability arising from any consequential accident.
---------------------------------------------------------------------------
    When compared to existing remedies, the specific, narrow 
exceptions in the legislation are insufficient to protect the 
rights of most of the victims who have been harmed by 
irresponsible gun manufacturers and sellers.

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

    The first exception in H.R. 800 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, by a party
directly harmed by the conduct of which the transferee is so 
convicted.'' \12\ Section 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.'' \13\
---------------------------------------------------------------------------
    \12\ See H.R. 800, supra note 2.
    \13\ 18 U.S.C. 924.
---------------------------------------------------------------------------
    H.R. 800 sets an impossibly high legal standard. This 
provision would only allow lawsuits against dealers who sell 
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 criminal intentions to the gun 
seller.
    For example, this exception would not preserve the pending 
case brought by the family of former Northwestern University 
basketball coach Ricky Byrdsong.\14\ The firearms dealer 
eventually implicated in the incident should have known that 
the assailant did not need 72 guns for his own use. State 
prosecutors had little difficulty establishing the shooter's 
gun trafficking operation even as the gun seller was charged 
with reckless indifference. But because this 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 the exception provided by H.R. 800.
---------------------------------------------------------------------------
    \14\ Anderson v. Bryco, et al., No. 00 L 7476 (Cir. Court of Cook 
County, Ill., 1999). 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 year and a half.
---------------------------------------------------------------------------

             B. 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. Again, the exception does little to guard 
victims of gun violence from an impossibly strict legal 
standard. This provision does not preserve any cases against 
gun manufacturers, and only protects a limited class of cases 
against sellers.

(i) Negligent entrustment

    Negligent 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.''
    This provision 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. The 
courthouse door is still shut to victims of the far more common 
practice of dealers negligently selling guns to traffickers 
who, in turn, supply criminals.
    For example, 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.\15\ 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 did not 
commit the underlying criminal acts.
---------------------------------------------------------------------------
    \15\ Lemongello v. Will Company, Inc., No. 02-C-2952, (Cir. Court, 
Kanawha County, WV).
---------------------------------------------------------------------------
    Because negligent entrustment is not even recognized in 
every state, in some states this ``exception'' would have 
absolutely no effect.\16\  E.g., Regan v. Nissan North America, 
Inc., 810 A.2d 255 (R.I. 2002) (Rhode Island does not recognize 
negligent entrustment theory).
---------------------------------------------------------------------------
    \16\ See, e.g., Regan v. Nissan North America, Inc., 810 A.2d 255 
(R.I. 2002) Rhode Island does not recognize negligent entrustment 
theory).
---------------------------------------------------------------------------

(ii) Negligence per se

    Negligence per se is ``the un-excused 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.'' \17\ 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.\18\
---------------------------------------------------------------------------
    \17\ See, e.g., Perry v. S.N., 973 S.W.2d 301 (Tex. 1998).
    \18\ Id.
---------------------------------------------------------------------------
    Because of the incredibly legal obstacles created by H.R. 
800, the negligence per se exception assists virtually no 
victims of gun violence. Under this provision, a gun seller is 
still shielded from liability unless he has also violated a 
second law or regulation that might be the ``appropriate 
basis'' for a negligence per se claim. This exception would not 
preserve Anderson v. Bryco, described above--even though the 
gun dealer was convicted of violating gun sale laws in 
Illinois--because he was never accused of illegally selling the 
gun actually used to shoot Ricky Byrdsong. Nor would the 
exception save Lemongello v. Will Company. The witness for the 
minority would have been thrown out of court because the 
doctrine of negligence per se is not recognized in West 
Virginia.\19\
---------------------------------------------------------------------------
    \19\ Gillingham v. Stephenson, 551 S.E.2d 633 (W. Va. 2001). 
Similarly, since negligence per se also is not recognized in Washington 
State (see Wash. Rev. Code Ann. Sec. 5.40.050 (1986), abrogating 
negligence per se) this exception does 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.'' Johnson v. Bull's Eye Shooter Supply, No. 
03-2-03932-8 (Sup. Ct. Wa.).
---------------------------------------------------------------------------
    Negligence per se also is not an accepted basis for 
liability in a number of other states, including Arkansas, 
North Dakota and Maine.\20\ The exception is incredibly narrow 
in some states; in others, it does not exist at all.
---------------------------------------------------------------------------
    \20\ 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).
---------------------------------------------------------------------------

                C. 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.''
    This exception little more than an even more limited 
version of the negligence per se provision. 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.
    Further, under this provision, 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 is generally not applied 
in civil cases.

                   D. BREACH OF CONTRACT OR WARRANTY

    The bill has another narrow exception for ``an action for 
breach of contract or warranty in connection with the purchase 
of the product.''
    Breach of contract cases occur when one party to a contract 
claims the other party has violated a provision of a contract. 
This provision would merely allow gun purchasers to sue a 
dealer if, for example, the dealer did not provide the gun that 
the purchaser paid for, or violated a sales contract in some 
other respect.
    A 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.
    This provision would only protect gun purchasers, and would 
provide no remedies for other persons injured by guns. It has 
little to do with either gun violence, lawsuit reform, or 
products liability law. The victims of defectively designed or 
negligently sold guns would not be allowed to pursue their 
rights in court. Even as to gun purchasers, their claims would 
be limited to what they were entitled under the scope of the 
contract or warranty.\21\
---------------------------------------------------------------------------
    \21\ 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.
---------------------------------------------------------------------------

     E. DEFECTIVE DESIGN OR MANUFACTURE WHERE GUN USED AS INTENDED

    H.R. 800 exempts 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)).
    This provision creates an exception to the liability shield 
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 intended'' by the manufacturer, but nevertheless 
malfunctioned. This exception is deliberately misleading, as it 
has little to do with cases advanced under traditional products 
liability law--the cases intentionally removed from the courts 
under H.R. 800. Gunfire accidents resulting from a negligently 
designed firearm and gunfire accidents resulting from the 
foreseeably dangerous use of a perfectly functional weapon 
operate under two entirely different bodies of law.
    For example, under this legislation the parents of Kenzo 
Dix, whose son was unintentionally shot and killed by a young 
friend who thought he was playing with an unloaded gun, would 
still be barred from pursuing their case against the gun 
manufacturer.\22\ The manufacturer chose to market a weapon 
that might have included a safety device that would have 
alerted Kenzo's friend that the gun was loaded, and might have 
prevented him from firing the gun. Although the friend's 
``misuse'' was common and predictable, the gun was not ``used 
as intended''--and the case would fail to meet the novel 
standard set by H.R. 800.
---------------------------------------------------------------------------
    \22\ Dix v. Beretta U.S.A., No. 750681-9 (Sup. Court of Alameda 
County, CA).
---------------------------------------------------------------------------

                               Conclusion

    Supporters of H.R. 800 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 for these reasons, we respectfully dissent.

        Description of Amendments Offered by Democratic Members

    During the markup ten amendments were offered by Democratic 
members:

                        1. Jackson-Lee Amendment

    Description of Amendment: The Jackson-Lee amendment 
proposed to add a new exception under section 4, paragraph (5) 
of the bill to permit the parents of children under the age of 
18 who are injured or killed as a result of some random act of 
gun violence to still bring a cause of action against 
irresponsible gun dealers.
    Vote on Amendment: The amendment was defeated on a straight 
party-line basis by a vote of 9 to 16. Ayes: Representatives 
Conyers, Nadler, Scott, Watt, Jackson Lee, Waters, Wexler, 
Sanchez, Van Hollen. Nays: Representatives Sensenbrenner, 
Coble, Smith, Gallegly, Goodlatte, Chabot, Jenkins, Cannon, 
Hostettler, Green, Keller, Issa, Forbes, King, Feeney, Gohmert.

                           2. Watt Amendment

    Description of Amendment: The Watt amendment proposed to 
strike section 3(b) of the bill in order to make the terms of 
the bill apply in a prospective manner.
    Vote on Amendment: The amendment was defeated on a straight 
party-line basis by a vote of 10 to 18. Ayes: Representatives 
Conyers, Nadler, Scott, Watt, Waters, Wexler, Schiff, Sanchez, 
Smith, Van Hollen. Nays: Representatives Sensenbrenner, Coble, 
Gallegly, Goodlatte, Chabot, Jenkins, Cannon, Bachus, Inglis, 
Hostettler, Green, Keller, Issa, Forbes, King, Feeney, Franks, 
Gohmert.

                          3. Wexler Amendment

    Description of Amendment: The Wexler amendment proposed to 
add a new exception under section 4, paragraph (5) of the bill 
which would permit a plaintiff to bring a cause of action 
against a dealer who transfers a firearm without an 
accompanying child safety lock, and the gun is later involved 
in the accidental killing of a child.
    Vote on the Amendment: The amendment was defeated on 
virtually a straight party-line basis by a vote of 10 to 18. 
Ayes: Representatives Conyers, Nadler, Scott, Watt, Waters, 
Wexler, Schiff, Sanchez, Smith, Van Hollen. Nays: 
Representatives Boucher, Sensenbrenner, Coble, Gallegly, 
Goodlatte, Chabot, Jenkins, Cannon, Bachus, Inglis, Hostettler, 
Green, Keller, Issa, Forbes, King, Feeney, Franks, Gohmert.

                           4. Watt Amendment

    Description of Amendment: The Watt amendment proposed to 
make several modifications to the bill in order to eliminate 
the immunity from liability that sellers, dealers or 
distributors enjoy under the current terms of the bill, even 
when they engage in negligent behavior that results in a 
firearm-related fatality.
    Vote on the Amendment: The amendment was defeated on 
virtually a straight party-line basis by a vote of 10 to 17. 
Ayes: Representatives Conyers, Nadler, Scott, Watt, Waters, 
Wexler, Schiff, Sanchez, Smith, Van Hollen. Nays: 
Representatives Boucher, Sensenbrenner, Coble, Gallegly, 
Goodlatte, Chabot, Jenkins, Cannon, Inglis, Hostettler, Keller, 
Issa, Forbes, King, Feeney, Franks, Gohmert.

                        5. Van Hollen Amendment

    Description of Amendment: The Van Hollen amendment proposed 
to replace the heightened standard of `negligence per se or 
negligence entrustment' with the more traditional common law 
standard of simple negligence.
    Vote on the Amendment: The amendment was defeated on 
virtually a straight party-line basis by a vote of 8 to 19. 
Ayes: Representatives Conyers, Scott, Watt, Waters, Meehan, 
Weiner, Sanchez, Van Hollen. Nays: Representatives Boucher, 
Sensenbrenner, Coble, Smith, Gallegly, Chabot, Lungren, Cannon, 
Inglis, Hostettler, Green, Keller, Issa, Flake, Pence, Forbes, 
King, Franks, Gohmert.

                          6. Sanchez Amendment

    Description of Amendment: The Sanchez amendment proposed to 
add a new exception under section 4, paragraph (5) of the bill 
to permit a plaintiff to bring a cause of action against a 
dealer that unlawfully transfers a firearm to an individual who 
has been previously convicted of a domestic violence-related 
offense.
    Vote on the Amendment: The amendment was virtually defeated 
on a straight party-line basis by a vote of 8 to 19. Ayes: 
Representatives Conyers, Scott, Watt, Lofgren, Waters, Meehan, 
Wexler, Weiner, Schiff, Sanchez, Van Hollen. Nays: 
Representatives Boucher, Sensenbrenner, Coble, Smith, Gallegly, 
Chabot, Lungren, Jenkins, Cannon, Inglis, Hostettler, Green, 
Keller, Issa, Flake, Pence, Forbes, King, Feeney, Franks, 
Gohmert.

                        7. Van Hollen Amendment

    Description of Amendment: The Van Hollen amendment proposed 
to modify the definition of ``negligent entrustment'' found in 
section 4, paragraph (5) of the bill to include transfers that 
occur even though the dealer knows that the purchaser of the 
firearm has been designated as suspected or known terrorist or 
gang member.
    Vote on the Amendment: The amendment was defeated on 
virtually a straight party-line basis by a vote of 10 to 20. 
Ayes: Representatives Conyers, Nadler, Scott, Lofgren, Jackson 
Lee, Meehan, Weiner, Schiff, Sanchez, Van Hollen. Nays: 
Representatives Boucher, Sensenbrenner, Coble, Smith, Gallegly, 
Chabot, Jenkins, Cannon, Inglis, Hostettler, Green, Keller, 
Issa, Flake, Pence, Forbes, King, Feeney, Franks, Gohmert.

                           8. Scott Amendment

    Description of Amendment: The Scott amendment proposed to 
strike the language in the findings section of the bill which 
incorrectly asserted that the right to keep and bear arms under 
the Second amendment is an individual right; and not a 
collective right, as interpreted by the Supreme Court.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 8-19. Ayes: Representatives Conyers, Boucher, 
Nadler, Scott, Watt, Lofgren, Waters, Meehan, Sanchez, Nays: 
Representatives Boucher, Sensenbrenner, Coble, Smith, Gallegly, 
Goodlatte, Lungren, Jenkins, Cannon, Hostettler, Green, Keller, 
Issa, Pence, Forbes, King, Feeney, Franks, Gohmert.

                           9. Scott Amendment

    Description of Amendment: The Scott amendment proposed to 
strike the language in section 4, paragraph 5 of the bill 
which, as drafted, would require two convictions (the 
conviction of the transferor and transferee) to take place 
prior to allowing an injured plaintiff to obtain relief.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 8-21. Ayes: Representatives Conyers, Nadler, 
Scott, Watt, Lofgren, Jackson Lee, Waters, Weiner, Sanchez, 
Nays: Representatives Boucher, Sensenbrenner, Coble, Smith, 
Gallegly, Goodlatte, Chabot, Lungren, Jenkins, Cannon, Inglis, 
Hostettler, Green, Keller, Issa, Pence, Forbes, King, Feeney, 
Franks, Gohmert.

                         10. Lofgren Amendment

    Description of Amendment: The Lofgren amendment proposed to 
add a new exception under section 4, paragraph (5) of the bill 
to permit any local, state or federal law enforcement official 
who was shot in the line of duty with the right to still bring 
a cause of action under traditional principles of negligence.
    Vote on Amendment: The amendment was defeated by a party-
line vote of 11-20. Ayes: Representatives Conyers, Nadler, 
Scott, Watt, Lofgren, Jackson Lee, Waters, Meehan, Weiner, 
Sanchez, Van Hollen. Nays: Representatives Boucher, 
Sensenbrenner, Coble, Smith, Gallegly, Goodlatte, Chabot, 
Lungren, Jenkins, Cannon, Hostettler, Green, Keller, Issa, 
Pence, Forbes, King, Feeney, Franks, Gohmert.

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

                      Additional Dissenting Views

    Every day, thousands of men and women put their lives on 
the line to serve as this Nation's first line of defense. 
Sadly, many of those brave men and women never make it home.
    According to the FBI, between 1992 and 2001, 594 police 
officers were shot to death. Countless others were injured by 
firearms, like David Lemongello, a former detective from 
Orange, New Jersey who testified last time Congress considered 
this bill.
    In his testimony, Mr. Lemongello spoke about the night his 
life changed forever. On January 12, 2001, he was shot 3 times 
after breaking up an armed robbery. His partner was shot twice. 
The gun used to shoot these officers was one of twelve guns 
bought by the same person, on the same day, from the same 
dealer. The dealer, knowing that the sale was suspicious, 
called the ATF immediately after selling the guns. But he sold 
them anyway, and now Mr. Lemongello and his partner must pay 
for his greed for the rest of their lives.
    This bill would protect that gun dealer and destroy Mr. 
Lemongello's right to have his case heard. As he testified in 
2003, Mr. Lemongello is not looking for any guarantee that he 
will win his case. All he wants is his day in court, so he can 
prove to a jury that irresponsible gun dealers should be held 
accountable.
    Mr. Lemongello is not alone. The International Brotherhood 
of Police Officers, the Major Cities Chiefs Association, and 
many other groups oppose this legislation because of its effect 
on the rights of law enforcement officers.
    Thankfully, we did not pass this legislation last Congress, 
so Mr. Lemongello was able to obtain a $1 million settlement, 
as well as agreements by the dealer and other area pawnshops to 
implement safer practices to prevent sales to gun traffickers.
    But here we are again, considering a bill that would 
protect irresponsible gun dealers at the expense of our 
country's dedicated police force.
    At markup, I offered a common-sense amendment that would 
have excluded from the definition of ``qualified civil 
liability action'' lawsuits brought by local, state and federal 
law enforcement officers who are shot in the line of duty by 
guns that should have never been on the streets. My amendment 
did not say that gun dealers should be liable simply because 
they sold a gun that was used in a crime. Nor did it say that 
the families of all 297 officers shot to death between 1997 and 
2001 should be able to recover.
    But when a gun dealer sells 12 or 50 or 100 guns to a 
person who clearly is going to turn around and sell those guns 
on the street, we should hold that dealer accountable. My 
amendment sought to do that, but the majority voted it down. 
For this reason, I respectfully dissent.

                                   Zoe Lofgren.

                                  
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