**Questions and Answers on H.R. 2037---**

**The Stearns-John "Protection of Lawful Commerce in Arms Act"**

-   This bill will address the growing problem of junk lawsuits filed
    with the intention of driving the firearms industry out of business
    by attempting to hold manufacturers and dealers liable for the
    criminal acts of third parties who are totally beyond their control.

-   These lawsuits have been filed in multiple states and demand a broad
    and varying range of remedies relating to product design and
    marketing. These demands, if granted, would create major
    restrictions on interstate commerce in firearms and ammunition. (See
    below for examples.)

-   The bill creates a system by which the Secretary of Commerce
    compiles a list of manufacturers or sellers and those persons are
    protected from restrictions arising from these junk lawsuits.

*Does this bill provide protection for people who aren't licensed gun
manufacturers or dealers?*

H.R. 2037 defines "manufacturer" and "seller" as persons who make or
sell guns "in the course of a business ... conducted for such purpose".
The bill also protects activities only by persons on the proposed
Department of Commerce list whose activities are lawful under the Gun
Control Act (GCA). The GCA requires anyone "engaged in the business" of
making or selling firearms to be licensed, and H.R. 2037 requires that
persons on the list be licensed if such licensing is required for their
activities. [Therefore, persons making or selling guns "in the course of
a business" but without a license, are committing an unlawful act and
would not be protected.]{.underline}

The only nonlicensees protected would be those who make or sell
components of firearms or ammunition, and who choose to add themselves
to the list. There is no more reason for manufacturers or sellers of
components to be held responsible for the criminal acts of third
parties, than there is for gun and ammunition makers themselves to be
subjected to such lawsuits.

*Does this bill create a new registry of gun owners or gun companies?*

Since most people on the list would be licensed manufacturers or dealers
anyway (see above), the list would largely be the same as the list of
federal firearms licensees (FFLs) maintained by ATF and available for
public inspection and even for purchase. The bill creates no list of gun
owners in general.

*Does H.R. 2037 protect those who commit state crimes or engage in
negligent conduct?*

H.R. 2037 provides protection only against restrictions on manufacturers
and sellers based on the criminal or unlawful acts of third
parties---not for their own negligent or criminal conduct. [Under the
bill, manufacturers or sellers must operate entirely within federal and
state law.]{.underline}

The bill also makes absolutely clear that it does not forbid suits based
on violations of federal or state law, or on traditional grounds such as
breach of contract or normal product liability cases involving actual
injuries caused by an improperly functioning firearm.

*How does H.R. 2037 affect states' rights?*

It does not, any more than any other recent product liability
legislation. For instance, during the 106^th^ Congress, legislation was
introduced to address the possibility of frivolous lawsuits related to
the problem of "Y2K" computer problems. H.R. 775 (cosponsored by 98
House members, passed by a vote of 236-190, and signed by President
Clinton as P.L. 106-37) sought "to lessen the burdens on interstate
commerce by discouraging insubstantial lawsuits" by preempting state law
to provide a uniform standard for such suits, and by capping punitive
damages. H.R. 2037 follows in the same vein.

H.R. 2037 is crafted only to regulate interstate and foreign commerce, a
power expressly granted to the Congress by the Constitution, and which
the Congress may exercise by acting to remove state burdens imposed on
such commerce. By defining "restrictions" only as court orders or
mandates, and by requiring compliance with state law as a prerequisite
for any new legal protections, the bill makes clear that state gun laws,
including licensing and taxation requirements, are not affected.

*What kind of new restrictions have been demanded in these junk
lawsuits?*

Complaints filed in the more than 30 suits to date have demanded a
variety of new court-ordered rules, some of which likely would violate
federal anti-trust laws if adopted voluntarily. Among the demands:

-   One-gun-a-month purchase restrictions not required by state law.
    (City of Chicago v. Beretta U.S.A. Corp.; National Association for
    the Advancement of Colored People and National Spinal Cord Injury
    Association v .A.A. Arms Inc)

-   Systematic monitoring of dealers' practices by manufacturers and
    distributors. (Various suits)

-   Prohibition on sales near Chicago of guns "that by their design are
    unreasonably attractive to criminals"---whatever that means.
    (Chicago)

-   Requiring manufacturers and distributors "to participate in a court
    ordered study of lawful demand for firearms and to cease sales in
    excess of lawful demand". (Chicago)

-   Prohibition on sales to dealers who are not stocking dealers with at
    least \$250,000 inventory. (NAACP v. A.A. Arms, Inc.)

-   "\[A\]n industry-wide program of warranty revocation upon individual
    resale of handguns, unless the firearm is resold only through a bona
    fide stocking handgun retailer." (NAACP v. A.A. Arms, Inc.)

-   A "permanent injunction requiring the defendant manufacturers to
    develop and implement safety features for their handguns designed to
    prevent their handguns from being discharged by children, those who
    steal handguns and other unauthorized users and also to prevent
    accidental discharge\[.\]" (Ganim v. Smith & Wesson Corp.
    (Bridgeport, CT))

*What have the courts said about these suits?*

Many of the cases have been dismissed, often with harsh words from
judges about plaintiffs' attempts to use the courts to bring about
restrictions of lawful commerce in firearms:

-   Ohio trial Judge Robert Ruehlman dismissed with prejudice
    Cincinnati\'s suit, stating \"the City\'s complaint is an improper
    attempt to have this Court substitute its judgment for that of the
    legislature, something which this Court is neither inclined nor
    empowered to do." The Ohio Court of Appeals affirmed Judge
    Ruehlman's decision, stating that to do otherwise "would open a
    Pandora\'s box. For example, the city could sue the manufacturers of
    matches for arson, or automobile manufacturers for traffic
    accidents, or breweries for drunk driving."

-   Bridgeport, Connecticut Superior Court Judge Robert F. McWeeny threw
    out the city of Bridgeport\'s suit, writing, "The plaintiffs have no
    statutory common law basis to recoup their expenditures. They lack
    any statutory authorization to initiate such claims." Judge McWeeny
    stated further that "\[t\]hey seek to regulate firearms in a manner
    that is preempted by state law."

-   The Louisiana Supreme Court struck down New Orleans' right to bring
    such a suit in the face of a state law forbidding it, in an opinion
    stating clearly "this lawsuit constitutes an indirect attempt to
    regulate the lawful design, manufacture, marketing and sale of
    firearms."

-   Judge Berle M. Schiller of the United States District Court for the
    Eastern District of Pennsylvania, dismissed with prejudice, all of
    Philadelphia's allegations, noting that "... the City\'s ... action
    seeks to control the gun industry by litigation, an end the City
    could not accomplish by passing an ordinance."

-   In the suit brought by Camden County, NJ, Judge Jerome B. Simandle
    of the United States District Court for the District of New Jersey
    stated that "these manufacturers, who distribute lawful handguns in
    compliance with existing federal and state statutes, may not be held
    liable for creating or maintaining the public nuisance of which
    Camden County complains."

-   Florida Circuit Judge Amy Dean dismissed Miami-Dade County\'s
    lawsuit against the industry, stating that "Public nuisance does not
    apply to the design, manufacture, and distribution of a lawful
    product."

-   In the Gary, Indiana case, Judge James J. Richards ruled on January
    12, 2001, "The city should not be permitted to invoke the
    jurisdiction of this Court to overlay or supplement existing civil
    and criminal 'gun' statutes and processes (either state and federal)
    by means of a series of judicial fiats which, when taken together,
    would only create a body of 'judge made laws.'"

*What does the public say?*

The public opposes these suits. A December 1998 survey of 1,008 U.S.
adults by DecisionQuest, a jury consulting firm, found 66.2% of American
adults opposed the lawsuits, while only 19.3% thought them justified. An
April 1999 ICR/Associated Press poll found that 70% of respondents
thought manufacturers should not be held liable to recoup hospital and
police costs. A May 1999 Gallup poll found 61% of Americans opposed to
lawsuits to recover "costs incurred because of gun violence." A May 1999
poll by Zogby International found 71% of Americans opposed to allowing
cities to sue gun manufacturers. And a June 1999 Los Angeles Times poll
found 53% of Californians opposed. Each of the last four polls found
that opposition crossed party lines, with a majority of Republicans,
Democrats and Independents opposed. (*Roll Call*, July 15, 1999)

*What have the states done?*

Twenty-six states have enacted legislation to prevent junk lawsuits
against the firearms industry based on the criminal behavior of others.
The U.S. Congress should follow suit.