In pushing for increased liability for the firearm industry, Hillary Clinton is seizing a momentous political opportunity. This strategy allows her to rail against Republicans and the National Rifle Association, while simultaneously positioning herself to the left of her difficult-to-get-to-the-left-of socialist primary opponent Bernie Sanders on a key issue – gun control. What is more, by using her platform as a Democratic candidate for President of the United States, she is able to (mis)define an issue vital to the firearm industry and persuade otherwise disinterested supporters to favor her position.
Clinton has promoted various gun control measures throughout her campaign, but the anti-gun issue Clinton has focused on most is the most consequential – increased liability for the firearm industry. Specifically, Clinton refers to the Protection of Lawful Commerce in Arms Act (“PLCAA”), which prevents lawful firearm manufacturers and dealers from being held civilly liable when their products are used in crimes.
PLCAA was a response to politically motivated lawsuits in which firearm manufacturers and dealers – who acted lawfully in every respect – were being held liable for the actions of criminals. Recognizing the injustice of holding innocent law-abiding parties responsible for the actions of third-party criminals, Congress passed PLCAA:
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.
15 U.S.C. § 7901(a)(6). As Congress further recognized, these lawsuits constituted an “attempt to circumvent the Legislative branch of government” and “would expand civil liability in a manner never contemplated by the framers of the Constitution.” § 7901(a)(7) & (8).
Nevertheless, Clinton continuously attacks PLCAA, inevitably mischaracterizing it. At a town hall event, Clinton said, “They [the firearm industry] are the only business in America that is wholly protected from any kind of liability. They can sell a gun to someone they know they shouldn't, and they won't be sued. There will be no consequences."
Every aspect of this claim is patently false. The firearm industry is not “wholly protected from any kind of liability.” PLCAA provides many examples of civil actions it does not prevent—including one that covers the exact situation Clinton described. PLCAA permits actions against manufacturers or sellers who “knowingly violated a State or Federal statute”—including 18 U.S.C. § 922(d)’s prohibition on transfers to prohibited persons. 15 U.S.C. § 7903(5)(A)(iii). Additionally, as Politifact noted in rating Clinton’s town hall claim “False,” a variety of other industries receive similar protections.
On her website, Clinton calls PLCAA “a dangerous law that prevents victims of gun violence from holding negligent manufacturers and dealers accountable for violence perpetrated with their guns.” This is another misrepresentation of PLCAA, which explicitly permits “an action brought against a seller for negligent entrustment or negligence per se.” § 7903(5)(A)(ii). Negligent entrustment is defined 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.” § 7903(5)(B).
Earlier this year, Clinton tweeted, “You can sue a company for making an unsafe toy—but not for making an assault rifle used to kill children.” And more recently, “If toy companies are held accountable for endangering our kids, gun makers should be too. Let's end their immunity.” These statements are intentionally misleading. PLCAA explicitly states that it does not prevent “an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product”—which is the precise type of suit Clinton is referring to regarding unsafe toys. § 7903(5)(A)(v). Similarly, the same rules apply to the firearm industry and toy industry when their products are misused by criminals. Toys “R” Us and Franklin Sports could not be held accountable if a maniac bludgeons somebody to death with a bocce ball; just as firearms dealers and manufacturers could not be held accountable if their lawful products are used in crimes committed by maniacs.
Other actions explicitly permitted by PLCAA include actions for breach of contract or warranty, and actions against transferors who know the firearm will be used to commit a crime of violence or drug trafficking crime. § 7903(5)(A)(i), (iv). Thus, just like in any other industry, firearm dealers and manufacturers are liable for their own actions. PLCAA simply prevents an innocent law-abiding entity from being civilly liable for “the criminal or unlawful misuse of a qualified product” by another person.
Undeterred by the truth – and certainly she knows what PLCAA truthfully does, since she voted on it – Clinton continues to misinform voters to push for its repeal. But while Clinton bemoans that the firearm industry receives specially favorable treatment, what she wants is the firearm industry to receive specially unfavorable treatment. Nobody would propose that the same liability apply to the automobile industry. Should Ford be held liable when a drunk driver causes an accident in one of its automobiles? Of course not. Clinton wants the firearm industry to be uniquely susceptible, so they can be coerced and abused.
President Bill Clinton did just that. In fact, PLCAA was enacted as a response to the Clinton Administration’s bullying of the firearm industry. President Clinton infamously strong-armed firearm manufacturers to make them implement changes he could not get through Congress, by threatening and supporting excessive litigation. President Clinton’s HUD Secretary Andrew Cuomo warned that if the firearm industry did not negotiate with them, firearm manufacturers would suffer “death by a thousand cuts” from all the lawsuits.
And because of all the lawsuits, many small manufacturers indeed went bankrupt. The legendary Colt’s Manufacturing Company had to stop producing handguns for civilians; unable to get financing because of the overwhelming litigation facing the company. Smith and Wesson, facing dozens of lawsuits from government alone and promised by a government lawyer that “the legal fees alone [will be] enough to bankrupt your industry,” caved into the Clinton Administration’s demands in exchange for immunity from the pending litigation. A company statement explained the agreement was reached to protect the “viability of Smith & Wesson as an ongoing business entity in the face of the crippling cost of litigation.” Trying to coerce Glock Inc. into joining the same agreement, Attorney General Elliot Spitzer promised, “if you do not sign, your bankruptcy lawyers will be knocking at your door.”
Florida Representative Cliff Stearns denounced the government’s tactics: “the government lawyers and private lawyers [are] conspiring, conspiring to coerce private industry into adopting public policy changes through the threat of abusive litigation. The option? Adopt our proposals or you will go bankrupt.” Years later, cosponsoring PLCAA, Stearns explained that the legislation was necessary because “trial lawyers have filed suits against federally licensed firearm manufacturers across this country in the hopes of bankrupting this industry.”
Hillary Clinton – who has vowed to “use every single minute of every day” to “change the gun culture” in America – has demonstrated that she would use the repeal of PLCAA to pick up where her husband left off and decimate the firearm industry. When Bernie Sanders (who voted for PLCAA) told Clinton at a debate last month that by repealing PLCAA, “what you’re really talking about is ending gun manufacturing in America,” Clinton defended her position by praising the way it was before PLCAA, when “a group of cities, states, and other concerned people…were working on legal theories that they thought would force gun makers to do more to make guns safer and force sellers to be much more responsible.” Thus revealing that as president, Clinton desires to return to the days in which the Executive Branch could force a constitutionally protected industry to obey its orders by promising to bankrupt the industry with a never-ending barrage of taxpayer funded lawsuits if resisted.
With the repeal of PLCAA comes the ability to abuse the judicial system in a way that circumvents the Legislative Branch and the will of the American people. Whether it is by unprecedentedly expanding the common law to hold innocent parties responsible for crimes committed solely by others; bankrupting firearm dealers and manufacturers through nuisance suits; or controlling the firearm industry simply through the threat of a crippling onslaught of lawsuits, the repeal of PLCAA represents the creation of the power to coercively litigate a constitutionally protected right into oblivion.