39–006 

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 

2 

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. 

3 

(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; 

4 

(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 

5 

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——

(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. 

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. 

6 

1See 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). 3See Lorcin Eng’g, 900 S.W.2d at 202. 4 Colt’s Mfg., 77 F.3d at 1083. 5See 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). 6See 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’’). 7See 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 § 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.’’). 8See 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). 9See 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 § 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. 10See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988). 

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 ‘‘safesales’’ 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 

7 

11 Bojorquez v. House of Toys Inc., 62 Cal. App. 3d 930, 934 (Cal. Ct. App. 4th Dist. 1976). 12See 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’’). 13See Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985) (applying Texas 

law). 14See 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). 15See 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 hollowpoint 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). 16See 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). 17See 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). 18See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984) (applying Illinois law). 19See Quiroz v. Leslie Edelman of N.Y., Inc., 638 N.Y.S.2d 154 (2d Dep’t 1996). 20See 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). 21See 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). 

have known that slingshots can be dangerous and deadly.’’ 11 The 

same applies to firearms. 

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

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 nonVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
8 

22See Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 1206 (E.D. Ky. 1973) (applying 

Kentucky law). 23See Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649 (Fla. Dist. Ct. App. 3d Dist. 1986). 24See Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (1985). 25See King v. R.G. Industries, Inc., 451 N.W.2d 874 (1990). 26See 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). 27See 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). 29See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 2d 882, 902 (E.D. Pa. 2000). 30Lorcin, 900 S.W.2d at 203. 31 Armijo, 843 F.2d at 407. 32Leslie v. United States, 986 F. Supp. 900, 911 (D.N.J. 1997). 33See Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 1989). 34See 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). 35See 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). 

defective weapon has no duty to anticipate22 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

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

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 

9 

36Ganim 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. 38Oliver Wendell Holmes, ‘‘Privilege, Malice, and Intent,’’ 1894 Harv.L. Rev. 1, 10 (1894). 39See 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 re- volver 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. 

Continued 

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

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

10 

Fuller, 120 F. at 275–76 (quoting Walker, § 82, 3d ed.). 41 332 U.S. 301 (1947). 42See id. at 304. 43 Id. at 315. 44See 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). 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). 

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: 

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

11 

46Ganim 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. 47District 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. § 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. § 12–714 (2000); Ark. Code Ann. § 14–

16–504(b)(2) (Michie Supp. 1999); Colo. Rev. Stat. §§ 13–21–501 to –505 (2000); Ga. Code Ann. 

§ 16–11–184 (2000); 2000 Ky. Acts 213; La. Rev. Stat. Ann. § 40:1799 (West 2000); Me. Rev. Stat. 

Ann. tit. 30–A, § 2005 (West 1999); Mich. Comp. Laws § 600.294 (2000); Mont. Code Ann. § 7–

1–115 (1999); Nev. Rev. Stat. § 12.107 (2000); Okla. Stat. tit. 21 § 1289.24a (1999); Tenn. Code 

Ann. § 39–17–1314 (1999); Tex. Civ. Prac. & Rem. Code S128.001 (2000); Utah Code Ann. § 78–

27–64 (2000); Va. Code Ann. § 15.2–915.1 (Michie 2000). In addition, the States of Alaska and 

South Dakota have exempted gun manufacturers from all lawsuits. Alaska Stat. § 09.65.155 

(Michie 2000); S.D. Codified Laws § 21–58–1 (Michie 2000). The South Dakota statute ‘‘finds 

that the unlawful use of firearms, rather than their lawful manufacture, distribution, or sale, 

Continued 

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, MiamiDade County, Newark, New Orleans, Philadelphia, San Francisco, 

St. Louis, and Wilmington.48 According to one commentator, ‘‘Since 

12 

is the proximate cause of any injury arising from their unlawful use.’’ S.D. Codified Laws § 21– 58–1 (Michie 2000). 

49 H. Sterling Burnett, ‘‘Firearms Cease-Fire?’’ The Washington Times (March 21, 2003) at 

A21. 50See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits, The New York Times (March 

21, 1999) at A32. 51See William C. Symonds et al., ‘‘Under Fire,’’ Business Week (August 16, 1999) at 63. 52See Fox Butterfield, ‘‘Lawsuits Lead Gun Maker to File for Bankruptcy,’’ The New York 

Times (June 24, 1999) at A14. 53 Id. 54Sharon Walsh, ‘‘Gun Industry Views Pact as Threat to Its Unity,’’ The Washington Post 

(March 18, 2000) at A10. 55 Id. 56See SAAMI: Sporting Arms and Ammunition Manufacturers’ Institute, Inc., Market Size 

and Economic Impact <http://www.saami.org/publications.html> (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. 57See 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. 58See generally Patrick J. Shea, Solving America’s General Aviation Crisis: The Advantages 

of Federal Preemption Over Tort Reform, 80 Cornell L. Rev. 747 (1995). 59Patrick J. Shea, ‘‘Solving America’s General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform,’’ 80 Cornell L. Rev. 747 (1995) at 748. 60See id. 61See id. 62See 49 U.S.C. §§ 40101–40120. 

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

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

13 

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). 64See ‘‘Nation in Brief: Ohio Supreme Court Reinstates Lawsuit Against Gunmakers,’’ The 

Washington Post (June 13, 2002) at A8. 65See Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 269 (1992). 66 52 Mass. 290 (1 Met. 1846). 67See id. at 290–91. 68See id. at 291. 69 Id. 70See id. 

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

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 

14 

71 Id. 72 Id. 73See 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). 79 503 U.S. 258 (1992). 80See id. at 261–62. 81See id. at 263. 82See id. at 271. 83See id. at 276. 84See id. at 268. 

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

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 

15 

85 Id. at 287 (Scalia, J., concurring) (quoting Associated Gen. Contractors v. Carpenters, 459 

U.S. 519, 536 (1983)). 86 Id. at 268. 

commentary on fate, not the statement of a major cause of action 

against a blacksmith.’’ 85

To assist courts in assessing whether a claim is too remote to 

permit a suit to proceed, the Holmes Court developed a threepronged 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. 

16 

87See 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). 88See 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). 89See Texas Carpenters Health Benefit Fund v. Philip Morris, Inc., 199 F.3d 788, 789 (5th Cir. 

2000). 90See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir. 1999). 91See 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). 92See 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). 93See, 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’’). 94See 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). 95See, 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). 96See, 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). 97For 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. 

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 Ninth92 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

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 

17 

98 25 Conn. 265 (1856). 99See 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). 102See, 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). 103See Ala. Code § 11–80–11 (enacted 2000); Ariz. Rev. Stat. § 12–714 (enacted 1999); Ark. 

Code § 14–16–504 (enacted 1999); Fla. Stat. § 790.331 (enacted 2001); Ga. Code § 16–11–184 (enacted 1999); Idaho Code § 5–247 (enacted 2000); Ky. Rev. Stat. § 65.045 (enacted 2000); La. Stat. 

§ 1799 (enacted 1999); Maine Rev. Stat. § 2005 (enacted 1999); Mont. Code § 7–1–115 (enacted 

1999); Nev. Rev. Stat. § 12.107 (enacted 1999); Okla. Stat. § 1289.24a (enacted 1999); Pa. Cons. 

Stat. § 6120 (enacted 1999); Tenn. Code § 39–17–1314 (enacted 1999); Texas Civil Practice & 

Remedies Code § 128.001 (enacted 1999); Utah Code § 78–17–64 (enacted 2000); Va. Code § 15.2– 915.1 (enacted 2000). 104See Alaska Stat. § 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 § 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. §§ 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 § 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 

§§ 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. § 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. § 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 § 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 § 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. 

Continued 

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

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. 

18 

§ 41.131 (enacted 1985) (stating that no cause of action exists merely because firearm was capable of causing serious injury); N.C. Stat. § 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 § 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 § 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 § 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 § 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 § 7.72.030 (enacted 1988) (precluding firearm from 

being found defective in design on ground that its benefits do not outweigh its risks). 105See 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. 106Penelas v. Arms Technology Inc. et al., No. 3D00–113, dismissal affirmed (Fla. Dist. Ct. 

App., 3d Dist., Feb. 14, 2001). 107See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 809838 (Ohio Com. Pl. Oct. 

7, 1999). 108 Id. at *1. 109 Id. 110See id. 

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 

19 

111Order granting defendants’ motion to dismiss, City of Chicago v. Beretta U.S.A. Corp., No. 

98 CH 15596 (Ill. Cir. Ct. Sept. 15, 2000). 112See 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)). 113See 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). 115Spitzer v. Sturn, Ruger & Company, Inc., 761 N.Y.S.2d 192, 194–95 (N.Y.App. 2003). 116 Id., at 203. 117Patterson, 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. 118Spitzer v. Sturn, Ruger & Co., Inc., 309 A.D.2d 91, 99 (N.Y.App. 2003). 119 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521–22 (1992). 

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

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

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 appliVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
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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). 122See 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. 123See 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)). 125See 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.’’). 126Lynda 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). 

cation 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. 

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

21 

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). 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. 

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

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 pursuVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
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133See 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). 137 U.S. Const. art. I, § 8. 138 U.S. Const. amend. XIV, § 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. 

ant 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. 

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: 

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 

23 

145 Healy, 491 U.S. at 336–37 (citations omitted). 146Dennis v. Higgins, 498 U.S. 439 (1991) (citations omitted) (quoting South-Central Timber 

Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984)). 147 BMW of North America, Inc. v. Gore, 517 U.S. 559, 572–73 (1996). 148 Id. at 573 n.19 (quoting Bordernkircher v. Hayes, 434 U.S. 357, 363 (1978)). 

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

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. 

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

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

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. 

24 

149William Prosser, Handbook of the Law of Torts § 99. 150Dorsey v. Yoder Co., 331 F.Supp. 753, 759 (E.D.Pa.1971), aff’d, 474 F.2d 1339 (3d. 

Cir.1973). 151See U.S. Department of Justice, Bureau of Justice Statistics, http://www.ojp.usdoj.gov/bjs/ 

cvict—c.htm. 152See 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). 153See 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). 154See 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). 155See id. at 20. 156See 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). 157See 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). 158See 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). 

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 

25 

159See Caroline Wolf Harlow, Bureau of Justice Statistics Special Report. ‘‘Firearms Use by 

Offenders’’ (November 2001, NCJ 189369) at 5. 160 608 F. Supp. 1206, 1211–12 (N.D. Tex. 1985). 161Ganim 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.’’). 164See ‘‘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). 

prison had parents that abused alcohol, and 18% of those in State 

prison had parents that abused alcohol.159

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 manufacturers162 and slingshot dealers163

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

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: 

26 

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. 167See Moran v. Faberge, Inc., 273 Md. 538, 332 A.2d 11 (1975) (foreseeable). 168See 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). 169See 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). 171For 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 §§ 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. §§ 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). 

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

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

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 paVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
27 

172Dennis Hevesi, ‘‘New York is Not Liable for Murders,’’ The New York Times (July 10, 

1987). 173See H. Sterling Burnett, Nat’l Center for Pol’y Analysis, Suing Gun Manufacturers: Hazardous to Our Health (1999). 174See 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). 175See ‘‘How Guns Save Lives,’’ The Washington Times (January 26, 2003). 176See 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. 180See 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 § 1 of the fourteenth amendment against State or local government action.’’); Akhil Amar, ‘‘The Bill of Rights 

Continued 

role.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. 

Researchers have estimated that Americans use guns for selfprotection 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

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

28 

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.’’). 181 270 F.3d 203 (5th Cir. 2001). 182 Id. at 236. 183 Id. at 260. 184See, 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.’’). 185The Federalist Papers (Clinton Rossiter ed., New American Library) (1961) at 299. 

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: 

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

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

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, § 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

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 

29 

186Don 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). 187 307 U.S. 174 (1939). 188See 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 71⁄2 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.’’). 

for the protection of a free State, they guaranteed the people’s right 

to possess those arms.’’ 186

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

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. 

30 

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. Sa ́nchez ...................................................................................................... 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 

31 

ROLLCALL NO. 2—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 

32 

ROLLCALL NO. 3—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 

33 

ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Weiner .........................................................................................................

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... 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. Sa ́nchez ...................................................................................................... X 

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen ..................................................................................................

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 8 19 

34 

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. Sa ́nchez ...................................................................................................... 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 

35 

ROLLCALL NO. 7—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 

36 

ROLLCALL NO. 8—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 

37 

ROLLCALL NO. 9—Continued 

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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 ........................................................................................................

38 

ROLLCALL NO. 10—Continued 

Ayes Nays Present 

Mr. Meehan ....................................................................................................... X 

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X 

Mr. Schiff .......................................................................................................... X 

Ms. Sa ́nchez ...................................................................................................... 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. Sa ́nchez ...................................................................................................... X 

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X 

Mr. Sensenbrenner, Chairman .......................................................................... X 

Total ................................................................................................ 22 12 

39 

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 privatesector mandate as defined in the Unfunded Mandates Reform Act 

(UMRA) by prohibiting State, local, and tribal governments and the 

40 

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 

41 

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. 

42 

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:] 

43 

1

I

109TH CONGRESS

1ST SESSION 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.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 15, 2005

Mr. STEARNS (for himself, Mr. BOUCHER, Mr. SMITH of Texas, Ms. HART,

Mr. BARTLETT of Maryland, Mr. BASS, Mr. ROGERS of Michigan, Mr.

BLUNT, Mr. WILSON of South Carolina, Mr. PEARCE, Mr. REYNOLDS,

Mrs. CUBIN, Mr. BRADY of Texas, Mr. BOEHLERT, Mr. NUSSLE, Mr.

TERRY, Ms. PRYCE of Ohio, Mr. BAKER, Mr. BRADLEY of New Hampshire, Mr. SIMPSON, Mr. BOEHNER, Mrs. BLACKBURN, Mr. MCHUGH,

Mr. SOUDER, Mr. WICKER, Mr. CANNON, Mr. BOYD, Mrs. MUSGRAVE,

Mr. GARRETT of New Jersey, Mr. MANZULLO, Mr. GINGREY, Mr. DAVIS

of Kentucky, Mr. MARSHALL, Mr. BONILLA, Mr. CANTOR, Mr. BACA, Mr.

TANNER, Mr. LEWIS of Kentucky, Mr. SCOTT of Georgia, Mr. MICHAUD,

Mr. LARSEN of Washington, Mr. HOLDEN, Mr. BERRY, Mr. TAYLOR of

North Carolina, Mr. MCCRERY, Mrs. JO ANN DAVIS of Virginia, Mr.

GARY G. MILLER of California, Mrs. MILLER of Michigan, Mr.

SWEENEY, Mr. PENCE, Mr. DAVIS of Tennessee, Mr. AKIN, Mr.

CHOCOLA, Mr. THOMAS, Mr. PETERSON of Minnesota, Mr. GILLMOR, Mr.

SULLIVAN, Mr. STRICKLAND, Mr. FOLEY, Mr. NUNES, Mr. ROGERS of

Kentucky, Mr. CULBERSON, Mr. OTTER, Mr. WALDEN of Oregon, Mr.

REHBERG, Mr. GOHMERT, Ms. HERSETH, Mr. GIBBONS, Mr. BURGESS,

Mr. WESTMORELAND, Mr. CARTER, Mr. SESSIONS, Mr. ENGLISH of

Pennsylvania, Mr. RENZI, Mr. BONNER, Mr. KANJORSKI, Mr. SHUSTER,

Mr. GENE GREEN of Texas, Mr. PICKERING, Mr. GOODE, Mr. ROGERS

of Alabama, Mr. GORDON, Mrs. CAPITO, Mr. EVERETT, Mr. YOUNG of

Alaska, Mr. TAYLOR of Mississippi, Mr. HENSARLING, Mr. MORAN of

Kansas, Mr. BARRETT of South Carolina, Mr. RYUN of Kansas, Mr.

MARCHANT, Mr. MACK, Mr. ADERHOLT, Mr. HEFLEY, Mr. COOPER, Mr.

CALVERT, Mr. HAYWORTH, Mr. FRANKS of Arizona, Mr. ISSA, Mr. DINGELL, Mr. TANCREDO, Mr. RAHALL, Mr. SIMMONS, Mr. MILLER of Florida, Mr. THORNBERRY, Mr. POMBO, Mr. KELLER, Mr. HERGER, Mr.

DOOLITTLE, Mr. SCHWARZ of Michigan, and Mr. NORWOOD) introduced

the following bill; which was referred to the Committee on the Judiciary



I800.AAB
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2

•HR 800 IH

A BILL

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Protection of Lawful

5 Commerce in Arms Act’’.

6 SEC. 2. FINDINGS; PURPOSES.

7 (a) FINDINGS.—The Congress finds the following:

8 (1) The Second Amendment to the United

9 States Constitution provides that the right of the

10 people to keep and bear arms shall not be infringed.

11 (2) The Second Amendment to the United

12 States Constitution protects the rights of individ13 uals, including those who are not members of a mili14 tia or engaged in military service or training, to

15 keep and bear arms.

16 (3) Lawsuits have been commenced against

17 manufacturers, distributors, dealers, and importers

18 of firearms that operate as designed and intended,

19 which seek money damages and other relief for the



I800.AAC
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3

•HR 800 IH

1 harm caused by the misuse of firearms by third par2 ties, including criminals.

3 (4) The manufacture, importation, possession,

4 sale, and use of firearms and ammunition in the

5 United States are heavily regulated by Federal,

6 State, and local laws. Such Federal laws include the

7 Gun Control Act of 1968, the National Firearms

8 Act, and the Arms Export Control Act.

9 (5) Businesses in the United States that are en10 gaged in interstate and foreign commerce through

11 the lawful design, manufacture, marketing, distribu12 tion, importation, or sale to the public of firearms or

13 ammunition products that have been shipped or

14 transported in interstate or foreign commerce are

15 not, and should not, be liable for the harm caused

16 by those who criminally or unlawfully misuse firearm

17 products or ammunition products that function as

18 designed and intended.

19 (6) The possibility of imposing liability on an

20 entire industry for harm that is solely caused by oth21 ers is an abuse of the legal system, erodes public

22 confidence in our Nation’s laws, threatens the dimi23 nution of a basic constitutional right and civil lib24 erty, invites the disassembly and destabilization of

25 other industries and economic sectors lawfully comVerDate 11-MAY-2000 16:40 Apr 25, 2005 Jkt 000000 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 G:\WORK\REPORTS\HR800\H800.IH HJUD1 PsN: HJUD1


I800.AAD
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4

•HR 800 IH

1 peting in the free enterprise system of the United

2 States, and constitutes an unreasonable burden on

3 interstate and foreign commerce of the United

4 States.

5 (7) The liability actions commenced or con6 templated by the Federal Government, States, mu7 nicipalities, and private interest groups and others

8 are based on theories without foundation in hun9 dreds of years of the common law and jurisprudence

10 of the United States and do not represent a bona

11 fide expansion of the common law. The possible sus12 taining of these actions by a maverick judicial officer

13 or petit jury would expand civil liability in a manner

14 never contemplated by the framers of the Constitu15 tion, by the Congress, or by the legislatures of the

16 several States. Such an expansion of liability would

17 constitute a deprivation of the rights, privileges, and

18 immunities guaranteed to a citizen of the United

19 States under the Fourteenth Amendment to the

20 United States Constitution.

21 (8) The liability actions commenced or con22 templated by the Federal Government, States, mu23 nicipalities, private interest groups, and others at24 tempt to use the judicial branch to circumvent the

25 legislative branch of the Government by regulating



I800.AAE
47 

5

•HR 800 IH

1 interstate and foreign commerce through judgments

2 and judicial decrees, thereby threatening the separa3 tion of powers doctrine and weakening and under4 mining important principles of federalism, State sov5 ereignty, and comity among the several States.

6 (b) PURPOSES.—The purposes of this Act are as fol7 lows:

8 (1) To prohibit causes of action against manu9 facturers, distributors, dealers, and importers of

10 firearms or ammunition products, and their trade

11 associations, for the harm solely caused by the crimi12 nal or unlawful misuse of firearm products or am13 munition products by others when the product func14 tioned as designed and intended.

15 (2) To preserve a citizen’s access to a supply of

16 firearms and ammunition for all lawful purposes, in17 cluding hunting, self-defense, collecting, and com18 petitive or recreational shooting.

19 (3) To guarantee a citizen’s rights, privileges,

20 and immunities, as applied to the States, under the

21 Fourteenth Amendment to the United States Con22 stitution, pursuant to section 5 of that Amendment.

23 (4) To prevent the use of such lawsuits to im24 pose unreasonable burdens on interstate and foreign

25 commerce.



I800.AAF
48 

6

•HR 800 IH

1 (5) To protect the right, under the First

2 Amendment to the Constitution, of manufacturers,

3 distributors, dealers, and importers of firearms or

4 ammunition products, and trade associations, to

5 speak freely, to assemble peaceably, and to petition

6 the Government for a redress of their grievances.

7 (6) To preserve and protect the separation of

8 powers doctrine and important principles of fed9 eralism, State sovereignty, and comity among the

10 several States.

11 (7) To exercise the power of Congress under ar12 ticle IV, section 1 of the United States Constitution

13 to carry out the full faith and credit clause.

14 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL

15 LIABILITY ACTIONS IN FEDERAL OR STATE

16 COURT.

17 (a) IN GENERAL.—A qualified civil liability action

18 may not be brought in any Federal or State court.

19 (b) DISMISSAL OF PENDING ACTIONS.—A qualified

20 civil liability action that is pending on the date of the en21 actment of this Act shall be dismissed immediately by the

22 court in which the action was brought or is currently pend23 ing.

24 SEC. 4. DEFINITIONS.

25 In this Act:



I800.AAG
49 

7

•HR 800 IH

1 (1) ENGAGED IN THE BUSINESS.—The term

2 ‘‘engaged in the business’’ has the meaning given

3 that term in section 921(a)(21) of title 18, United

4 States Code, and, as applied to a seller of ammuni5 tion, means a person who devotes time, attention,

6 and labor to the sale of ammunition as a regular

7 course of trade or business with the principal objec8 tive of livelihood and profit through the sale or dis9 tribution of ammunition.

10 (2) MANUFACTURER.—The term ‘‘manufac11 turer’’ means, with respect to a qualified product, a

12 person who is engaged in the business of manufac13 turing the product in interstate or foreign commerce

14 and who is licensed to engage in business as such a

15 manufacturer under chapter 44 of title 18, United

16 States Code.

17 (3) PERSON.—The term ‘‘person’’ means any

18 individual, corporation, company, association, firm,

19 partnership, society, joint stock company, or any

20 other entity, including any governmental entity.

21 (4) QUALIFIED PRODUCT.—The term ‘‘qualified

22 product’’ means a firearm (as defined in subpara23 graph (A) or (B) of section 921(a)(3) of title 18,

24 United States Code), including any antique firearm

25 (as defined in section 921(a)(16) of such title), or



I800.AAH
50 

8

•HR 800 IH

1 ammunition (as defined in section 921(a)(17)(A) of

2 such title), or a component part of a firearm or am3 munition, that has been shipped or transported in

4 interstate or foreign commerce.

5 (5) QUALIFIED CIVIL LIABILITY ACTION.—

6 (A) IN GENERAL.—The term ‘‘qualified

7 civil liability action’’ means a civil action or pro8 ceeding or an administrative proceeding

9 brought by any person against a manufacturer

10 or seller of a qualified product, or a trade asso11 ciation, for damages, punitive damages, injunc12 tive or declaratory relief, abatement, restitution,

13 fines, or penalties, or other relief, resulting

14 from the criminal or unlawful misuse of a quali15 fied product by the person or a third party, but

16 shall not include—

17 (i) an action brought against a trans18 fer or convicted of an offense under section

19 924(h) of title 18, United States Code, or

20 a comparable or identical State felony law,

21 by a party directly harmed by the conduct

22 of which the transferee is so convicted;

23 (ii) an action brought against a seller

24 for negligent entrustment or negligence per

25 se;



I800.AAI
51 

9

•HR 800 IH

1 (iii) an action in which a manufac2 turer or seller of a qualified product know3 ingly violated a State or Federal statute

4 applicable to the sale or marketing of the

5 product, if the violation was a proximate

6 cause of the harm for which relief is

7 sought, including—

8 (I) any case in which the manu9 facturer or seller knowingly made any

10 false entry in, or failed to make ap11 propriate entry in, any record re12 quired to be kept under Federal or

13 State law with respect to the qualified

14 product, or aided, abetted, or con15 spired with any person in making any

16 false or fictitious oral or written state17 ment with respect to any fact material

18 to the lawfulness of the sale or other

19 disposition of the qualified product; or

20 (II) any case in which the manu21 facturer or seller aided, abetted, or

22 conspired with any other person to

23 sell or otherwise dispose of the quali24 fied product, knowing, or having rea25 sonable cause to believe, that the acVerDate 11-MAY-2000 16:40 Apr 25, 2005 Jkt 000000 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 G:\WORK\REPORTS\HR800\H800.IH HJUD1 PsN: HJUD1


I800.AAJ
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10

•HR 800 IH

1 tual buyer of the qualified product

2 was prohibited from possessing or re3 ceiving a firearm or ammunition

4 under subsection (g) or (n) of section

5 922 of title 18, United States Code;

6 (iv) an action for breach of contract

7 or warranty in connection with the pur8 chase of the product; or

9 (v) an action for death, physical inju10 ries, or property damage resulting directly

11 from a defect in design or manufacture of

12 the product, when used as intended or in

13 a reasonably foreseeable manner, except

14 that if the discharge of the product was

15 caused by a volitional act that constituted

16 a criminal offense, then such act shall be

17 considered the sole proximate cause of any

18 resulting death, personal injury, or prop19 erty damage.

20 (B) NEGLIGENT ENTRUSTMENT.—As used

21 in subparagraph (A)(ii), the term ‘‘negligent en22 trustment’’ means the supplying of a qualified

23 product by a seller for use by another person

24 when the seller knows, or reasonably should

25 know, the person to whom the product is supVerDate 11-MAY-2000 16:40 Apr 25, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 G:\WORK\REPORTS\HR800\H800.IH HJUD1 PsN: HJUD1


I800.AAK
53 

11

•HR 800 IH

1 plied is likely to, and does, use the product in

2 a manner involving unreasonable risk of phys3 ical injury to the person or others.

4 (C) RULE OF CONSTRUCTION.—The excep5 tions set forth in clauses (i) through (v) of sub6 paragraph (A) shall be construed so as not to

7 be in conflict, and no provision of this Act shall

8 be construed to create a public or private cause

9 of action or remedy.

10 (6) SELLER.—The term ‘‘seller’’ means, with

11 respect to a qualified product—

12 (A) an importer (as defined in section

13 921(a)(9) of title 18, United States Code) who

14 is engaged in the business as such an importer

15 in interstate or foreign commerce and who is li16 censed to engage in business as such an im17 porter under chapter 44 of title 18, United

18 States Code;

19 (B) a dealer (as defined in section

20 921(a)(11) of title 18, United States Code) who

21 is engaged in the business as such a dealer in

22 interstate or foreign commerce and who is li23 censed to engage in business as such a dealer

24 under chapter 44 of title 18, United States

25 Code; or



I800.AAL
54 

12

•HR 800 IH

1 (C) a person engaged in the business of

2 selling ammunition (as defined in section

3 921(a)(17)(A) of title 18, United States Code)

4 in interstate or foreign commerce at the whole5 sale or retail level.

6 (7) STATE.—The term ‘‘State’’ includes each of

7 the several States of the United States, the District

8 of Columbia, the Commonwealth of Puerto Rico, the

9 Virgin Islands, Guam, American Samoa, and the

10 Commonwealth of the Northern Mariana Islands,

11 and any other territory or possession of the United

12 States, and any political subdivision of any such

13 place.

14 (8) TRADE ASSOCIATION.—The term ‘‘trade as15 sociation’’ means any corporation, unincorporated

16 association, federation, business league, or profes17 sional or business organization—

18 (A) that is not organized or operated for

19 profit, and no part of the net earnings of which

20 inures to the benefit of any private shareholder

21 or individual;

22 (B) that is an organization described in

23 section 501(c)(6) of the Internal Revenue Code

24 of 1986 and exempt from tax under section

25 501(a) of such Code; and



I800.AAM
55 

13

•HR 800 IH

1 (C) 2 or more members of which are man2 ufacturers or sellers of a qualified product.

3 (9) UNLAWFUL MISUSE.—The term ‘‘unlawful

4 misuse’’ means conduct that violates a statute, ordi5 nance, or regulation as it relates to the use of a

6 qualified product.

Æ



I800.AAN
56 

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. 

57 

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. 

58 

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:] 

59 


800LS1.eps
60 


800LS2.eps
61 

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:] 

62 H.L.C.

AMENDMENT TO H.R. 800

OFFERED BY MR. CANNON OF UTAH

Page 8, beginning on line 17, strike ‘‘transfer or’’

and insert ‘‘transferor’’.


800A.AAB
63 

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:] 

64 

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 manuVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00064 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124

800B.eps
65 

facture 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——

66 

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 

67 

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. 

68 

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? 

69 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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:] 

70 H.L.C.

AMENDMENT TO H.R. 800

OFFERED BY MR. WATT OF NORTH CAROLINA

Page 6, strike lines 14 through 23 and insert the

following:

1 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL

2 LIABILITY ACTIONS IN FEDERAL OR STATE

3 COURT.

4 A qualified civil liability action may not be brought

5 in any Federal or State court.


800C.AAB
71 

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——

72 

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. 

73 

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. 

74 

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 inVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00074 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
75 

dustry’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, 

76 

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. 

77 

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. 

78 

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.] 

79 

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? 

80 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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:] 

81 H.L.C.

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’’.

Page 10, after line 19, insert the following:

1 (vi) an action brought by a plaintiff

2 for damages resulting from an uninten3 tional shooting of a child who has not at4 tained 18 years of age with a firearm for

5 which the manufacturer did not supply a

6 safety lock approved by the National Insti7 tute of Standards and Technology.

Page 11, line 5, strike ‘‘(v)’’ and insert ‘‘(vi)’’.


800D.AAB
82 

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. 

83 

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:] 

84 


800E1.eps
85 


800E2.eps
86 

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? 

87 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

88 

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:] 

89 H.L.C.

AMENDMENT TO H.R. 800

OFFERED BY MR. WATT OF NORTH CAROLINA

Page 2, line 17, strike ‘‘, distributors, dealers, and

importers’’.

Page 3, beginning on line 3, strike ‘‘importation,

possession, sale, and use’’.

Page 3, line 5, strike ‘‘are’’ and insert ‘‘is’’.

Page 3, beginning on line 11, strike ‘‘manufacture,

marketing, distribution, importation or sale to the public’’ and insert ‘‘and manufacture’’.

Page 3, beginning on line 19, strike ‘‘an entire industry’’ and insert ‘‘firearm and ammunition manufacturers’’.

Page 5, line 9, strike ‘‘, distributors, dealers, and

importers’’.

Page 5, beginning on line 10, strike ‘‘, and their

trade associations,’’

Page 5, line 12, strike ‘‘or unlawful’’.

Page 6, beginning on line 3, strike ‘‘distributors,

dealers, and importers of firearms or ammunition prodVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00089 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124

800F.AAB
90 

2

H.L.C.

ucts, and trade associations,’’ and insert ‘‘of firearms or

ammunition products’’.

Page 7, beginning on line 4, strike ‘‘, and, as applied’’ and all that follows through line 9 and insert a period.

Page 8, strike line 5 and all that follows through

line 9 on page 11 and insert the following:

1 (5) QUALIFIED CIVIL LIABILITY ACTION.—The

2 term ‘‘qualified civil liability action’’ means a civil

3 action or proceeding or an administrative proceeding

4 brought by any person against a manufacturer for

5 damages resulting from the criminal misuse of a

6 qualified product by the person or a third party, but

7 shall not include—

8 (A) an action in which a manufacturer of

9 a qualified product knowingly violated a State

10 or Federal statute applicable to the design or

11 manufacture of the product, if the violation was

12 a proximate cause of the harm for which relief

13 is sought;

14 (B) an action for breach of contract or

15 warranty in connection with the purchase of the

16 product; or


800F.AAC
91 

3

H.L.C.

1 (C) an action for death, physical injuries,

2 or property damage resulting directly from a

3 defect in design or manufacture of the product,

4 when used as intended or in a reasonably fore5 seeable manner.

Page 11, strike line 10 and all that follows through

line 5 on page 12.

Page 12, line 6, strike ‘‘(7)’’ and insert ‘‘(6)’’.

Page 12, strike line 14 and all that follows through

line 6 on page 13.


800F.AAD
92 

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. 

93 

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? 

94 

[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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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 

95 

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 


800G.eps
96 

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 

97 

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.] 

98 

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? 

99 

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 definiVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00099 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124

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tive 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, 

101 

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. 

102 

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 

103 

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.] 

104 

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? 

105 

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:] 

106 

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 inVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00106 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124

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107 

sert their letter, dated April 12, 2005, their letter of opposition into 

the record. 

Chairman SENSENBRENNER. Without objection. 

[The letter referred to follows:] 


800J1.eps
108 


800J2.eps
109 


800J3.eps
110 

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 


800J4.eps
111 

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. 

112 

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. 

113 

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. 

114 

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:] 

115 

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. 


800M.eps
116 

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. 

117 

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. 

118 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

119 

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. SA ́ NCHEZ. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. 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. Sa ́nchez of 

California. Page 8, after line 22, insert the following: 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment of Ms. Sa ́nchez follows:] 

120 

Chairman SENSENBRENNER. The gentlewoman is recognize for 5 

minutes. 

Ms. SA ́ NCHEZ. 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. 


800N.eps
121 

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 

122 

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 Sa ́nchez 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. 

Sa ́nchez. Those in favor will say aye. 

Mr. CONYERS. Aye. 

Chairman SENSENBRENNER. Opposed no. 

Chairman SENSENBRENNER. The noes appear to have it. 

123 

Ms. SA ́ NCHEZ. 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. Sa ́nchez. 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? 

124 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

125 

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 liaVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00125 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124

800O.eps
126 

ble 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, mainVerDate Aug 04 2004 02:56 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00126 Fmt 6659 Sfmt 6601 E:\HR\OC\HR124.XXX HR124
127 

tained 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.] 

128 


800K.eps
129 

Mr. WEINER. And the legal memorandum by the Corporation 

Counsel of the City of New York. 

Chairman SENSENBRENNER. Also without objection. 

[The information follows.] 

130 


800L1.eps
131 


800L2.eps
132 

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. 

133 

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. 

134 

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. 

135 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, 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. 

136 

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. 

137 

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. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, 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.] 

138 

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.] 

(139) 

1During 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. 

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 

140 

2 H.R. 800, Sec. 4. DEFINITIONS, (5) QUALIFIED CIVIL LIABILITY ACTION.—(A)(i)–(v) at 7–8. 3Former 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. 

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

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 

141 

4 U.S. Const. Amend II. 

5 U.S. v. Miller, 307 U.S. 174, 178 (1939). 6 Id. (citing Aymette v. Tennessee, 21 Tenn. (2 Hum.) 154, 158–59 (1840)). 7 Id. (quoting U.S. Const. art. I, § 8, cls. 15, 16). 8 Id. at 265. 

(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. 

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

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

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, 

142 

9 Id. at 281–82. 10See H.R. 800, supra note 2. 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. 

determined that restrictions on the manner of carrying weapons 

also do not violate the Second Amendment.9

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. 

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

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 

143 

12See H.R. 800, supra note 2. 13 18 U.S.C. 924. 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. 

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

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. 

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 

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15Lemongello v. Will Company, Inc., No. 02–C–2952, (Cir. Court, Kanawha County, WV). 16See, e.g., Regan v. Nissan North America, Inc., 810 A.2d 255 (R.I. 2002) Rhode Island does 

not recognize negligent entrustment theory). 17See, e.g., Perry v. S.N., 973 S.W.2d 301 (Tex. 1998). 18 Id. 19Gillingham 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. § 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.). 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). 

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. 

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). 

(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

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

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. 

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.’’

145

21For 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. 

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

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. 

146

22Dix v. Beretta U.S.A., No. 750681–9 (Sup. Court of Alameda County, CA). 

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. 

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. 

147

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. 

148

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 partyline 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 partyline vote of 8–21. Ayes: Representatives Conyers, Nadler, Scott, 

Watt, Lofgren, Jackson Lee, Waters, Weiner, Sanchez, Nays: Representatives Boucher, Sensenbrenner, Coble, Smith, Gallegly, 

149

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 partyline 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. SA ́ NCHEZ. 

CHRIS VAN HOLLEN. 

(150)

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.

151

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.

Æ