It is time to poke a hole in another balloon that’s popular among gun control fans.
Repeal of the Protection of Lawful Commerce in Arms Act (PLCAA) has become another cause du jour. Hillary Clinton says she will repeal it; petitions are circulating to urge legislators to repeal it.
Everybody is up in arms because the PLCAA might cause the dismissal of a lawsuit brought by the parents of some of the children killed in the Sandy Hook tragedy.
In a move that smacks more of politics than jurisprudence, Connecticut Superior Court Judge Barbara Bellis has allowed the suit to go forward despite the fact is it is entirely without merit – and not just because of the PLCAA. Nonetheless, Judge Bellis has been widely praised for her courage.
The PLCAA has been characterized as the gun manufacturers’ “get out of jail free” card because it supposedly shields them from any and all legal repercussions. The popular meme is that gunmakers don’t even bear the liabilities that manufacturers of other products must deal with.
Call it a distortion, call it a mischaracterization, call it a lie. Take your pick, they’re all accurate.
The PLCAA does not shield gunmakers from liability for defects or failure to honor warranties nor does it protect them from lawsuits for injuries, deaths or damages resulting from defects.
The PLCAA also leaves manufacturers, distributors and retailers liable for failing to keep proper records or for falsifying records.
The PLCAA does not protect sellers from liability for negligent entrustment. Congress defined 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.”
So grounds for negligent entrustment apply only to the actual seller of the firearm selling a gun to a person likely to use it negligently or illegally. This means that Remington Outdoors is not liable for negligent entrustment. Neither is Riverview Gun Sales, which sold the Bushmaster rifle to Nancy Lanza in full compliance with federal and Connecticut state laws. The truth is that no one “entrusted” Adam Lanza with the weapons he used.
The PLCAA was intended to prevent the “death by a thousand cuts” promised by Housing and Urban Development Secretary Andrew Cuomo and the bankruptcies promised by Elliott Spitzer. It was passed by the Senate 65-31 and the House of Representatives by a 283-144 margin. There was bipartisan support in both chambers. President George W. Bush signed it into law on October 206, 2005.
In its findings, Congress noted there had been other lawsuits prior to the PLCAA; most of which were dismissed. But Congress was concerned about the growth of coercive, frivolous and malicous lawsuits. As was noted in the Congressional findings in U.S. Code, Title 15, Section 105 § 7901, paragraphs six and seven:
“(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 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.”
To read all of the Congressional findings, click here.
While you may not like it, it’s important. Repealing the PLCAA opens the door for all sorts of lawsuits.
Last December, Lakeisha Holloway deliberately drove her 1996 Oldsmobile onto a crowded Las Vegas sidewalk, killing a mother of three and injuring 37, some of them critically. Is General Motors liable for Ms. Holloway’s actions? If you favor repealing the PLCAA, then your answer is “yes.” The answer also is “yes” for suing Hillerich & Bradsby if someone uses a Louisville Slugger baseball bat in an assault or murder or Henckels if someone commits a murder with one of their kitchen knives.
So repealing the PLCAA would create chaos and carnage in American industry as lawsuits based on the most tenuous connections cripple manufacturers.
The second part of the Sandy Hook lawsuit charges Remington Outdoors with negligence for offering military-style rifles for sale to civilians.
The effort to get a judgement on that basis is going to be a problem. The AR-15, the semi-automatic version of the Army’s M-16 assault rifle, was introduced in the civilian market in 1973 by Colt, which also made the M-16. That’s almost 40 years before Sandy Hook.
Beyond the AR-style rifle, manufacturers produce other military-style firearms, including a semi-automatic rifle patterned on the M14 and a number of handguns copied from the M1911 and M1911A1 .45-caliber pistols issued by the U.S. armed forces. In truth, there are replicas of just about every U.S. military firearm back to those used by the Continental Army in the Revolutionary War.
And how about sales of a light, semi-automatic rifle not only designed for the military but used by the military. It’s capable of accepting a 30-round magazine and comes with a bayonet lug. Some of them have a flash hider, folding stock and pistol grip. It’s not an AR-15: It’s the M1 Carbine used in World War II and Korea. Hundreds of thousands of surplus M1 Carbines and M1 Garand battle rifles were sold to civilians by the U.S. government through the Civilian Marksmanship Program, which has been around since 1903. The most recent batch of M1 Carbines went on sale in February of this year.
So the “courage” of Superior Court Judge Barbara Bellis is not so much courageous as is it is a public display of ignorance. She is attempting to hold Remington Outdoors liable for a lawful practice that is well-established not only in the industry but in the government, as well.
Everyone with any heart at all feels sympathy for the families destroyed by Adam Lanza and understands their desire for what they consider to be redress. But Adam Lanza is dead; Nancy Lanza is dead and Riverview Gun Sales closed after the Bureau of Alcohol, Tobacco, Firearms and Exploisves pulled their firearms license because of unrelated violations of the law. But the fact they are short on targets for a lawsuit doesn’t mean Remington bears any responsibility for their loss.
And that’s the whole point of the Protection of Lawful Commerce in Arms Act.