19–006

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 108–59

PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

APRIL 7, 2003.—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 VIEWS 

[To accompany H.R. 1036] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1036) to prohibit civil liability actions from being brought or 

continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others, having considered the same, reports favorably thereon with an amendment and recommends that 

the bill as amended do pass.

CONTENTS 

Page 

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 4

Background and Need for the Legislation ............................................................. 4

Hearings ................................................................................................................... 29

Committee Consideration ........................................................................................ 29

Vote of the Committee ............................................................................................. 29

Committee Oversight Findings ............................................................................... 31

Performance Goals and Objectives ......................................................................... 31

New Budget Authority and Tax Expenditures ...................................................... 31

Congressional Budget Office Cost Estimate .......................................................... 31

Constitutional Authority Statement ...................................................................... 32

Section-by-Section Analysis and Discussion .......................................................... 32

Markup Transcript .................................................................................................. 33

Dissenting Views ..................................................................................................... 97

2

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) Citizens have a right, protected by the Second Amendment to the United 

States Constitution, to keep and bear arms. 

(2) 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. 

(3) 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. 

(4) 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 that has 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. 

(5) 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. 

(6) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups 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. 

(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 for the harm caused by the 

criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended. 

(2) To preserve a citizen’s access to a supply of firearms and ammunition 

for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting. 

(3) To guarantee a citizen’s rights, privileges, and immunities, as applied 

to the States, under the Fourteenth Amendment to the United States Constitution, pursuant to section 5 of that Amendment. 

(4) To prevent the use of such lawsuits to impose unreasonable burdens on 

interstate and foreign commerce. 

(5) To protect the right, under the First Amendment to the Constitution, 

of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, 

and to petition the Government for a redress of their grievances. 

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: 

3

(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) 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 brought by any person against a manufacturer or seller of a 

qualified product, or a trade association, for damages or injunctive 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 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 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; 

(iv) an action for breach of contract or warranty in connection with 

the purchase of the product; or 

(v) an action for physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used 

as intended. 

(B) NEGLIGENT ENTRUSTMENT.—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 should know the person 

to whom the product is supplied is likely to use the product, and in fact 

does use the product, in a manner involving unreasonable risk of physical 

injury to the person and others. 

(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) of title 18, United States Code) in interstate or foreign 

commerce at the wholesale or retail level, consistent with Federal, State, 

and local law. 

(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 association or business organization (whether or not incorporated under Federal or 

State law) that is not operated for profit, and 2 or more members of which are 

manufacturers or sellers of a qualified product.

4

1 ‘‘Person’’ is defined in Sec. 4(3) as including ‘‘any individual, corporation, company, association, firm, partnership, society, joint stock company, or any other entity, including any governmental entity.’’ 2 18 U.S.C. § 924(h) provides that it is a criminal offense to ‘‘knowingly transfer[] a firearm, 

knowing that such firearm will be used to commit a crime of violence . . . or drug trafficking 

crime...’’. 3 ‘‘Negligent entrustment’’ is defined in Sec. 4(5)(B) of 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 use the product, and in fact does use the product, 

in a manner involving unreasonable risk of physical injury to the person and others.’’ 4 Negligence per se is negligence established as a matter of law. Negligence per se usually 

arises from a violation of a duty imposed by statute. See Black’s Law Dictionary (7th ed. 1999).

PURPOSE AND SUMMARY

H.R. 1036, 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 that are pending on the date of enactment shall be dismissed immediately by the 

court in which the action was brought or is currently pending. 

‘‘Qualified civil liability action’’ is defined in Sec. 4(5)(A) as:

a civil action brought by any person 1 against a manufacturer 

or seller of a qualified product, or a trade association, for damages or injunctive relief resulting from the criminal or unlawful misuse of a qualified product by the person or a third 

party...’’

This term, however, does not include:

(i) an action brought against a transferor convicted under section 924(h) of title 18, United States Code,2 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 3 or negligence per se; 4 (iii) an action where 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; (iv) an action for breach of contract 

or warranty in connection with the purchase of the product; or 

(v) an action for physical injuries or property damage resulting 

directly from a defect in design or manufacture of the product, 

when used as intended. 

Manufacturers and sellers of qualified products are defined as 

those who are federally licensed to manufacture, import, or deal in 

firearms, as defined by Federal law. Persons engaged in the business of selling ammunition, as defined by Federal law, are also covered under H.R. 1036, if they engage in such business consistent 

with federal, State, and local law. 

BACKGROUND AND NEED FOR THE LEGISLATION

Congress, by passing H.R. 1036, can protect the separation of 

powers and uphold democratic procedures by exercising its 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. 

5

5See 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). 6 Colt’s Mfg., 77 F.3d at 1083 (relying on Lorcin Eng’g, 900 S.W.2d at 205). 7See Lorcin Eng’g, 900 S.W.2d at 202. 8 Colt’s Mfg., 77 F.3d at 1083. 9See 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). 10See 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’’). 11See 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.’’ Id. 12See 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). 13See 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. 14See Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988). 

THE COMMON-SENSE TRADITIONAL RULE IS THAT MANUFACTURERS

SHOULD NOT BE HELD LIABLE FOR THE CRIMINAL OR WILLFULLY

TORTIOUS MISUSE OF THEIR PRODUCTS

Historically, American courts have not held firearms manufacturers liable for the injuries caused by the negligent or criminal action 

of third parties.5 Individual plaintiffs attempting to establish firearm manufacturer liability have advanced various theories 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.’’ 6 Relying upon earlier cases from 

the same State,7 the Eighth Circuit ruled that ‘‘handgun manufacturers owe no duty to victims of illegal shootings.’’ 8 In other cases, 

individual plaintiffs have attempted but failed to recover under 

theories including defective design,9 failure to warn,10 public nuisance,11 negligence,12 strict product liability,13 and abnormally 

dangerous or ultra-hazardous activity liability.14 As one court observed of slingshots, ‘‘ever since David slew Goliath, young and old 

6

15 Bojorquez v. House of Toys Inc., 62 Cal. App. 3d 930, 934 (Cal. Ct. App. 4th Dist. 1976). 16See 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‘‘). 17See Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985) (applying Texas 

law). 18See 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). 19See 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). 20See 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). 21See 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). 22See Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (7th Cir. 1984) (applying Illinois law). 23See Quiroz v. Leslie Edelman of N.Y., Inc., 638 N.Y.S.2d 154 (2d Dep’t 1996). 24See 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). 25See 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). 26See Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 1206 (E.D. Ky. 1973) (applying 

Kentucky law). 27See Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649 (Fla. Dist. Ct. App. 3d Dist. 1986). 

alike have known that slingshots can be dangerous and deadly.’’ 15

The same could be said for 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 to the victim because the manufacture and distribution of firearms is not per se unlawful.16 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,17 and courts have held that 

a gun manufacturer is not an insurer that the product is completely safe,18 nor is it under any duty to design a product incapable of causing injury.19 A gun manufacturer who produces and 

markets a weapon that performs as intended and designed is not 

liable,20 since members of the general public can presumably recognize the dangers involved in using firearms and assume the responsibility for their own actions.21 A victim is not entitled to damages simply because he or she was injured through the use of the 

manufacturer’s product.22

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.23 In addition, any criminal misuse of a 

firearm that is not reasonably foreseeable is an intervening,24 or an 

independent superseding cause,25 which the manufacturer of a nondefective weapon has no duty to anticipate26 or prevent.27 Courts 

7

28See Kelley v. R.G. Industries, Inc., 497 A.2d 1143 (1985). 29See King v. R.G. Industries, Inc., 451 N.W.2d 874 (1990). 30See 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). 31See 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). 32 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). 33See City of Philadelphia v. Beretta U.S.A. Corp., 126 F. Supp. 2d 882, 902 (E.D. Pa. 2000). 34Lorcin, 900 S.W.2d at 203. 35 Armijo, 843 F.2d at 407. 36Leslie v. United States, 986 F. Supp. 900, 911 (D.N.J. 1997). 37See Addison v. Williams, 546 So. 2d 220, 226 (La. Ct. App. 1989). 38See 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). 39See 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). 

have also held that the risk of intentional criminal misuse of ‘‘Saturday Night Specials’’—generally characterized by short barrels, 

light weight, easy concealability, low cost, use of cheap quality materials, poor manufacture, inaccuracy and unreliability 28—does not 

give rise to liability,29 as this risk is not great enough to outweigh 

any potential societal benefit of the product.30

Handgun manufacturers historically have been found, and generally continue to be found, to have no duty to third-party victims 

of firearm misuse,31 such as criminal or accidental misuse.32 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.33 In First Commercial Trust Co. v. Lorcin 

Engineering, Inc., the Arkansas Supreme Court held that handgun 

manufacturers ‘‘owed no legal duty’’ to shooting victims.34 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.35 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.’’ 36 Furthermore, a Louisiana court also held that gun manufacturers have no duty to abstain from the legal manufacturing and selling of guns.37 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.38

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.39 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 

8

40Ganim 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). 41 Id. at *30. 42Oliver Wendell Holmes, ‘‘Privilege, Malice, and Intent,’’ 1894 Harv.L. Rev. 1, 10 (1894). 43See 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. 44 376 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. 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.

Fuller, 120 F. at 275–76 (quoting Walker, § 82, 3d ed.).

in damage calculation.’’ 40 The judge asserted that Bridgeport ‘‘cannot seriously maintain that reasonable certainty in calculating 

their damage claims is within the realm of possibility.’’ 41

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. 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, some one 

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....’’ 42 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.43 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....’’ 44

Finally, the remoteness doctrine has been widely accepted by the 

courts as a bar to claims brought by public entities, and courts 

9

45 332 U.S. 301 (1947). 46See id. at 304. 47 Id. at 315. 48See 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). 49 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). 

have dismissed complaints by public entities based on this threshold consideration. For example, in United States v. Standard Oil 

Co.,45 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.46 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.’’ 47 Similarly, courts have dismissed city 

and county complaints seeking recovery at common law for injuries 

to remote third parties.48 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.49

10

50Ganim 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. 51District of Columbia v. Beretta U.S.A. Corp., et al., 2002 WL 31811717 (D.C. Super.), at *2. 52 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, 

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

VARIOUS PUBLIC ENTITIES HAVE RECENTLY PRESSED COURTS TO RE- JECT THE COMMON-SENSE MAJORITY RULE, TO BREACH THE SEPA- RATION 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.50 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,’’ 51 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.52 According to one commentator, ‘‘Since 

11

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

A21. 54See David Rosenbaum, Echoes of Tobacco Battle in Gun Suits, The New York Times (March 

21, 1999) at A32. 55See William C. Symonds et al., ‘‘Under Fire,’’ Business Week (August 16, 1999) at 63. 56See Fox Butterfield, ‘‘Lawsuits Lead Gun Maker to File for Bankruptcy,’’ The New York 

Times (June 24, 1999) at A14. 57 Id. 58Sharon Walsh, ‘‘Gun Industry Views Pact as Threat to Its Unity,’’ The Washington Post

(March 18, 2000) at A10. 59 Id. 60See 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. 61See 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. 62See generally Patrick J. Shea, Solving America’s General Aviation Crisis: The Advantages 

of Federal Preemption Over Tort Reform, 80 Cornell L. Rev. 747 (1995). 63Patrick J. Shea, ‘‘Solving America’s General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform,’’ 80 Cornell L. Rev. 747 (1995) at 748. 64See id. 65See id. 66See 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.’’ 53 However, gun manufacturers do not have 

the financial capacity of the cigarette companies whose sales average $45 billion annually.54 In contrast, the gun industry grosses 

only $1.5 billion a year.55 It has been estimated that tobacco companies spend approximately $600 million a year defending against 

suits brought by the States.56 Gun companies are incapable of financing a similar defense.57 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.’’ 58 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.59 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.60 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.61

One industry that was forced to the brink of extinction by excessive liability awards and virtually unlimited retroactive liability is 

the general aviation industry.62 The United States had developed 

a leading position in general aviation. However, during the 1980’s 

and early 1990’s, the American general aviation industry deteriorated rapidly.63 General aviation aircraft production plummeted between 1978 and 1991 from 18,000 planes to less than 900.64 The 

manufacture of single engine piston aircraft fell to only 555 by 

1993.65 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.66

12

67 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). 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). 68See ‘‘Nation in Brief: Ohio Supreme Court Reinstates Lawsuit Against Gunmakers,’’ The 

Washington Post (June 13, 2002) at A8. 69See Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 269 (1992). 70 52 Mass. 290 (1 Met. 1846). 71See id. at 290–91. 72See id. at 291. 73 Id. 74See 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; 67 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, was recently reinstated by the Ohio Supreme Court.68

However, the relationship between a tortious act and actual injury historically must be direct, not remote.69 The earliest American example of this concept occurred in Anthony v. Slaid.70 In that 

case, the plaintiff Anthony contracted to assist the poor by funding 

medical care and other assistance.71 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.72 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.’’ 73 Anthony sued Mrs. Slaid’s husband as the then-legally-liable party, seeking reimbursement of his increased costs.74 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 

13

75 Id. 76 Id. 77See id. 78 95 U.S. 754, 759 (1877). 79 Id. at 754. 80 Id. at 756. 81 Id. at 758. 82 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). 83 503 U.S. 258 (1992). 84See id. at 261–62. 85See id. at 263. 86See id. at 271. 87See id. at 276. 88See id. at 268. 

which he had undertaken to support the town paupers.’’ 75 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.’’ 76 The court then 

sustained dismissal of Anthony’s complaint.77 Soon thereafter, the 

United States Supreme Court applied the remoteness doctrine to 

bar a plaintiff’s claims in Insurance Co. v. Brame.78 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.79 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.80 Finding that the relevant cases were ‘‘substantially uniform against the 

right of recovery,’’ 81 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.’’ 82

Much more recently, the United States Supreme Court reaffirmed this principle in Holmes v. Securities Investor Protection 

Corp.83 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.84 SIPC filed Racketeer Influenced and Corrupt Organizations (‘‘RICO’’) claims to recoup from the inside trader those 

amounts it had paid to the brokers’ clients.85 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.86 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.87 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.’’ 88 As Justice Scalia noted, ‘‘’[F]or want of a nail, a kingdom was lost’ is a 

14

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

U.S. 519, 536 (1983)). 90 Id. at 268. 

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

against a blacksmith.’’ 89

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.90 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 resulting effort to apportion 

damages would inevitably result in arbitrary and unfair results. 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. 

15

91See 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). 92See 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). 93See Texas Carpenters Health Benefit Fund v. Philip Morris, Inc., 199 F.3d 788, 789 (5th Cir. 

2000). 94See Coyne v. American Tobacco Co., 183 F.3d 488, 495 (6th Cir. 1999). 95See 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). 96See 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). 97See, 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’’). 98See 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). 99See, 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). 100See, 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). 101For 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,91 Third,92 Fifth,93

Sixth,94 Seventh,95 and Ninth96 Circuit Courts of Appeals, as well 

as by multiple district courts,97 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 appeals98 and 

multiple Federal district courts99 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.100 However, subsequent decisions have effectively rejected or limited these 

minority opinions and have reasserted the importance of the remoteness doctrine in those jurisdictions.101

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 one hundred years ago in the case of Connecticut 

16

102 25 Conn. 265 (1856). 103See id. at 271. 104 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). 105 Unisys Corp. v. Department of Labor, 600 A.2d 1019, 1022, 220 Conn. 689 (1991). 106See, 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). 107See 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). 108See 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. 

§ 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 

Mutual Life Insuance Co. v. New York & New Haven Railway 

Co.,102 in which an insurer brought a negligence action against a 

tortfeasor responsible for the death of its insured.103 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.’’ 104 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.’’ 105 Likewise, the common law of other 

States bars such remote claims.106

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.107 Some immunity statutes are 

broader in scope and affect the legal rights of private individuals.108 But none do or can address the national problem addressed 

by H.R. 1036. 

17

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). 109See 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. 110Penelas v. Arms Technology Inc. et al., No. 3D00–113, dismissal affirmed (Fla. Dist. Ct. 

App., 3d Dist., Feb. 14, 2001). 111See Cincinnati v. Beretta U.S.A. Corp., No. A9902369, 1999 WL 809838 (Ohio Com. Pl. Oct. 

7, 1999). 112 Id. at *1. 113 Id. 114See 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 and that only the State had the power to regulate in this area.109 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 gun 

makers, trade groups and retailers.110 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 also typical.111 The city sought 

‘‘injunctive relief which would require [the] defendants to change 

the methods by which they design, distribute[,] and advertise their 

products nationally.’’ 112 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.’’ 113 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.114 The court in City 

of Chicago v. Beretta similarly found that the facts alleged by the 

city ‘‘in terms of immediacy and proximity’’ of the harm and its 

causation, were the kind of facts that the legislature could take 

18

115Order granting defendants’ motion to dismiss, City of Chicago v. Beretta U.S.A. Corp., No. 

98 CH 15596 (Ill. Cir. Ct. Sept. 15, 2000). 116See 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)). 117See Morial v. Smith & Wesson Corp., 785 So. 2d 1, 16 (La. 2001). 118Patterson, 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. 119 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521–22 (1992). 120 BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 n.17 (1996); see also San Diego 

Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959) (‘‘[R]egulation can be as effectively 

exerted through an award of damages as through some form of preventive relief. The obligation 

to pay compensation can be, indeed is designed to be, a potent method of governing conduct and 

controlling policy.’’). 121 Complaint at ¶161(c), James v. Arcadia Mach. & Tool, No. L–6059–99 (N.J. Super. Ct. 

Essex County filed June 9, 1999). 

heed of and contemplate and a court could not.115 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.116 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.117

Through traditional tort suits, public entities are using both extraordinary compensatory and punitive damage requests and 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.’’ 118

However, as the United States Supreme Court has repeatedly 

recognized, ‘‘regulation can be as effectively exerted through an 

award of damages as through some form of preventive relief . . . 

[W]e have recognized the phrase ‘State law’ to include common law 

as well as statutes and regulations. ’’119 More recently, the Court 

reiterated that regulatory ‘‘power may be exercised as much by a 

jury’s application of a State rule of law in a civil lawsuit as by a 

statute. ’’120 Plaintiffs 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 

19

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). 124Route 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). 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. 

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 reported recently 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, ‘‘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

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 criminally-inflicted injuries. 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 

20

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. 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). 

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 pursuant to the Chicago Municipal Code, and to force manufacturers to 

stop lawfully supplying products to those dealers, directly or indirectly.133 Similarly, in the complaint filed by the District of Columbia, that city seeks to hold manufacturers liable for their lawful 

sales outside the District of firearms which ‘‘subsequently are 

brought unlawfully [by others] into the District.’’ 134 Other cities 

seek injunctive relief aimed at ‘‘prohibiting the sale of [firearms] in 

a manner which causes such firearms to inappropriately enter the 

State’’ 135 or at forcing fundamental changes in the methods by 

which manufacturers distribute firearms. In one case, a county specifically sought an injunction whereby the court would order fireVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059
21

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. 145 Healy, 491 U.S. at 336–37 (citations omitted).

arms 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 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 

22

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)). 149William Prosser, Handbook of the Law of Torts § 99. 

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. 

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 

23

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). 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). 

need not guard against the danger it presents.’’ 150 Knives are 

mostly used for nonviolent purposes, such as cooking, but hundreds 

of thousands of violent crimes every year are perpetrated with 

knives. 35% of homicides are committed with weapons other than 

guns.151 Further, 40% of aggravated assaults involving strangers 

are committed with knives or blunt objects, and 49% of aggravated 

assaults involving nonstrangers are committed with knives or blunt 

objects.152 Alcohol, too, exacts a toll on society.153 For example, in 

1996, motor vehicle accidents involving intoxicated motorists accounted for over 13,000 fatalities.154 On an average day during the 

same year, it was determined that just under two million offenders 

under the jurisdiction of the criminal justice system consumed alcohol at the time they committed their offense.155 Further, two-thirds 

of victims who suffered violence by an intimate—a current or 

former spouse, boyfriend, or girlfriend—reported that alcohol had 

been a factor.156 Of all victims of violence, 26% involve the use of 

alcohol by the offender, and these victimizations result in estimated annual losses of $402 million.157 Alcohol use by offenders is 

also involved in 22% of rapes.158 Further, of inmates who possessed 

a firearm during their current offense, 17% of those in Federal 

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

prison had parents that abused alcohol.159

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 

24

161Ganim v. Smith & Wesson Corp., No. X06 CV 990153198S, 1999 Conn. Super. LEXIS 3330 

at *14 (Conn. Super. Ct. Dec. 10, 1999). 162Koepke 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.’’). 165See Michael Freedman, ‘‘The Tort Mess’’ Forbes (May 13, 2002).

purveyors of ‘junk’ food would follow the tobacco industry in reimbursing government expenditures....’’ 161 Only a few years later, 

this ‘‘new age’’ of litigation is already upon us. Whereas lawsuits 

brought against BB gun manufacturers 162 and slingshot dealers 163

were at one time viewed as dangerous judicial incursions into legislative roles, today such lawsuits against even fast food companies 

are proliferating.164

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 tend to establish legal 

precedents that will invite 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 one recent report:

In the next few years, predicts insurance consultancy 

Tillinghast-Towers Perrin, tort costs could increase twice as 

fast as the economy, going from $200 billion last year to $298 

billion, or 2.4% of GDP, by 2005. Since 1994 the average jury 

award in tort cases as a whole has tripled to $1.2 million, in 

medical malpractice it has tripled to $3.5 million and in product liability cases it has quadrupled to $6.8 million, according 

to just released data from Jury Verdict Research.’’ 165

And according to a recent report by the Council of Economic Advisers:

[T]he United States tort system is the most expensive in the 

world, more than double the average cost of other industrialized nations . . . 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 

25

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.); Sil- ver 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). 172Dennis Hevesi, ‘‘New York is Not Liable for Murders,’’ The New York Times (July 10, 

1987). 

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 trial 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 on and 

kill him.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 parole.172 Accordingly, it is inappropriate for the government, through 

the courts, to make it difficult or impossible for persons to own 

handguns for self-defense. Less than 1 percent of the firearms in 

26

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 John R. Lott, Jr. More Guns Less Crime: Understanding Crime and Gun Control Laws 

(2d. ed. 2000) at 77–79 (Figures 4.5, 4.6, 4.7, 4.8, and 4.9). 177See 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. 178 Id. at 173. 179 Id. at 175. 180 Id. at178. 

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 Research has also demonstrated that nondiscretionary concealed gun laws—which require 

law-enforcement officials or a licensing agency to issue, without 

subjective discretion, concealed-weapon permits to all qualified applicants—reduce the incidence of violent crime, murder, rape, robbery, and aggravated assault.176 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.177 Only 24% of the gun defenders in 

the study reported firing the gun, and only 8% reported wounding 

an adversary.178 Guns were most commonly used for defense 

against burglary, assault, and robbery.179 Also, a disproportionate 

share of defensive gun users are African-American or Hispanic 

compared to the general population.180

Research also indicates that women and blacks benefit most from 

being able to have a gun for protection:

Murder rates decline when either more women or more men 

carry concealed handguns, but the effect is especially pronounced for women. One additional woman carrying a concealed handgun reduces the murder rate for women by about 

3–4 times more than one additional man carrying concealed 

handgun reduces the murder rate for men. This occurs because 

allowing a women to defend herself with a concealed handgun 

produces a much larger change in her ability to defend herself 

than the change created by providing a man with a handgun 

. . . [B]lacks benefit more than other groups from concealedhandgun laws. Allowing potential victims a means for self-deVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00026 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059
27

181See John R. Lott, Jr. More Guns Less Crime: Understanding Crime and Gun Control Laws 

(2d. ed. 2000) at 20. 182See 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 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.’’). 183 270 F.3d 203 (5th Cir. 2001). 184 Id. at 236. 185 Id. at 260. 

fense is more important in crime-prone [inner city] neighborhoods.181

The benefits to women and blacks, and others, from being able 

to have a gun for protection 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.182

The Fifth Circuit Court of Appeals 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,183 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.184

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.’’ 185

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 

28

186See, 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.’’). 187The Federalist Papers at 299 (Rossiter, New American Library). 188Don 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). 189 307 U.S. 174 (1939). 190See 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.’’). 

military group separate and distinct from the people at large.186

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.’’ 187

As stated by one commentator quoted by the Fifth Circuit, ‘‘the 

[second] amendment’s wording, so opaque to us, made perfect sense 

to the Framers: believing that a militia (composed of the entire 

people possessed of their individually owned arms) was necessary 

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

to possess those arms.’’ 188

The Supreme Court’s decision in United States v. Miller,189 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.190

SUMMARY

Congress, by passing H.R. 1036, will protect the separation of 

powers and uphold democratic procedures by exercising its 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 Subcommittee on Commercial and Administrative Law held 

a legislative hearing on H.R. 1036 on April 2, 2003. Testimony was 

received from the following witnesses: Carlton Chen, General 

Counsel, Colt Manufacturing Company, Inc; Walter Olson, Senior 

29

Fellow, the Manhattan Institute; David Lemongello, Nutley, New 

Jersey; and Lawrence G. Keane, Vice President and General Counsel, the National Shooting Sport Foundation. 

COMMITTEE CONSIDERATION

On April 3, 2003, the Committee met in open session and ordered 

favorably reported the bill H.R. 1036 with amendment by a recorded vote of 21 to 11, a quorum being present. 

VOTE OF THE COMMITTEE

1. Motion by Mr. Cannon ordering the previous question on the 

Watt Amendment, the Amendment in the Nature of a Substitute, 

and on the bill, was agreed to by a rollcall vote of 20 yeas, 5 nays, 

and 1 present.

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler .........................................................................................................

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

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

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

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

Ms. Baldwin ......................................................................................................

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

Mr. Schiff ..........................................................................................................

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

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

Total ................................................................................................ 20 5 1

2. Final Passage. The motion to report favorably the bill H.R. 

1036, as amended, was agreed to by a rollcall vote of 21 yeas to 

11 nays.

30

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith .......................................................................................................... X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Ms. Hart ............................................................................................................ X

Mr. Flake ........................................................................................................... X

Mr. Pence .......................................................................................................... X

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Carter .......................................................................................................... X

Mr. Feeney ......................................................................................................... X

Mrs. Blackburn .................................................................................................. X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher ....................................................................................................... X

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................ X

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

Mr. Delahunt ..................................................................................................... X

Mr. Wexler ......................................................................................................... X

Ms. Baldwin ......................................................................................................

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

Mr. Schiff ..........................................................................................................

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

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

Total ................................................................................................ 21 11

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. 

PERFORMANCE GOALS AND OBJECTIVES

H.R. 1036 does not authorize funding. Therefore, clause 3(c) of 

rule XIII of the Rules of the House of Representatives is inapplicable. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax 

expenditures. 

31

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. 1036, 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, April 4, 2003. 

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. 1036, 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 Lanette J. Walker (for 

Federal costs), who can be reached at 226–2860, Victoria Heid Hall 

(for the state and local impact), who can be reached at 225–3220, 

and Cecil McPherson (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. 1036—Protection of Lawful Commerce in Arms Act. 

H.R. 1036 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. 1036 would not have a significant impact on the Federal budget. Enacting the bill would not affect direct spending or 

revenues. 

H.R. 1036 would impose both an intergovernmental mandate and 

a private-sector mandate as defined in the Unfunded Mandates Reform Act (UMRA). The bill would prohibit State, local, and tribal 

governments, and the private sector from entering into lawsuits 

against certain manufacturers or sellers of firearms and ammunition products and related trade associations when such products 

are used unlawfully to do harm. 

Depending on how such claims are resolved under current law, 

plaintiffs could stand to receive significant amounts in damage 

awards. More than 30 governmental entities have such lawsuits 

pending. Because few lawsuits have been completed, CBO has no 

basis for predicting the level of potential damage awards, if any. 

Therefore, we cannot determine the cost of these mandates (forgone 

net value of damage awards) or whether they would exceed the annual thresholds established in UMRA for intergovernmental mandates ($59 million in 2003, adjusted annually for inflation) and for 

32

private-sector mandates ($117 million in 2003, adjusted annually 

for inflation). 

The CBO staff contacts for this estimate are Lanette J. Walker 

(for Federal costs), who can be reached at 226–2860, Victoria Heid 

Hall (for the State and local impact), who can be reached at 225–

3220, and Cecil McPherson (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. 

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

Sec. 1. Short Title. 

This sections provides that this Act may be cited as the ‘‘Protection of Lawful Commerce in Arms Act.’’

Sec. 2. Findings; Purposes. 

This sections sets out the findings and purposes of the Act. 

Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions 

in Federal or State Court. 

This section provides that a ‘‘qualified civil liability action’’ may 

not be brought in any Federal or State court, and that any such 

qualified civil liability action that is pending on the date of the enactment of this Act shall be dismissed immediately by the court in 

which the action was brought or is currently pending. 

Sec. 4. Definitions. 

This sections defines ‘‘qualified civil liability action’’ as a civil action brought by any person against a manufacturer or seller of a 

qualified product, or a trade association, for damages or injunctive 

relief resulting from the criminal or unlawful misuse of a qualified 

product by the person or a third party. Excluded from this definition are (i) actions brought against a transferor convicted 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) actions brought 

against a seller for negligent entrustment or negligence per se; (iii) 

actions 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; (iv) actions for breach of contract or warranty in connection with the purchase of the product; and (v) actions for physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended. 

This sections 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. 

33

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 should know the person to whom the 

product is supplied is likely to use the product, and in fact does use 

the product, in a manner involving unreasonable risk of physical 

injury to the person and others.

MARKUP TRANSCRIPT

BUSINESS MEETING 

THURSDAY, APRIL 3, 2003

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:00 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, and pursuant to notice, I now call up 

the bill, H.R. 1036, the ‘‘Protection of Lawful Commerce and Arms 

Act’’ for purposes of markup, and move its favorable recommendation to the full house. Without objection the bill will be considered 

as read and open for amendment at any point. 

[The bill, H.R. 1036, follows:]

34

1

I

108TH CONGRESS

1ST SESSION H. R. 1036

To prohibit civil liability actions from being brought or continued against

manufacturers, distributors, dealers, or importers of firearms or ammunition for damages resulting from the misuse of their products by others.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 27, 2003

Mr. STEARNS (for himself, Mr. JOHN, Ms. HART, Mr. BOUCHER, Mr.

PEARCE, Mr. JOHNSON of Illinois, Mr. SIMMONS, Mr. LEWIS of Kentucky, Mr. KNOLLENBERG, Mr. PUTNAM, Mr. BISHOP of Georgia, Mrs.

CAPITO, Mr. BOEHLERT, Mr. FORBES, Mr. GOODE, Mr. ROGERS of Alabama, Mr. BISHOP of Utah, Mr. PICKERING, Mr. COSTELLO, Mr. BROWN

of South Carolina, Mr. HILL, Mr. MICA, Mr. HOSTETTLER, Mr. BURGESS, Mr. LAMPSON, Mr. MILLER of Florida, Mr. TURNER of Ohio, Mr.

MURPHY, Mr. HALL, Mrs. NORTHUP, Mr. GARY G. MILLER of California,

Mr. BRADY of Texas, Mr. RYAN of Ohio, Mr. MICHAUD, Mr. GERLACH,

Mr. BALLENGER, Mr. GINGREY, Mr. RADANOVICH, Mr. PITTS, Mr.

MCINNIS, Mr. AKIN, Mr. MARSHALL, Mr. RYAN of Wisconsin, Mr.

FOLEY, Mr. EVERETT, Mr. KENNEDY of Minnesota, Mr. MURTHA, Mr.

NETHERCUTT, Mr. LARSEN of Washington, Mr. NEY, Mr. WILSON of

South Carolina, Ms. PRYCE of Ohio, Mr. REHBERG, Mr. VITTER, Mr.

CANNON, Mr. KOLBE, Mr. STRICKLAND, Mr. HAYWORTH, Mr. SCHROCK,

Mr. ROSS, Mr. YOUNG of Alaska, Mr. FLAKE, Mr. PETERSON of Minnesota, Mr. CRANE, Mr. HERGER, Mr. PENCE, Mr. DOOLITTLE, Mr.

CHOCOLA, Mr. BOYD, Mr. HOLDEN, Mr. TOOMEY, Mr. CARSON of Oklahoma, Mr. MCINTYRE, Mr. KINGSTON, Mr. KELLER, Mr. SIMPSON, Mr.

CUNNINGHAM, Mr. GREEN of Texas, Mr. TERRY, Mr. TANCREDO, Mr.

CALVERT, Mr. WICKER, Mr. ORTIZ, Mr. BUYER, Mr. BEAUPREZ, Mr.

DINGELL, Mr. ROGERS of Kentucky, Mrs. MILLER of Michigan, Mr.

MATHESON, Ms. GINNY BROWN-WAITE of Florida, Mr. DAVIS of Tennessee, Mr. LUCAS of Kentucky, Mr. LATHAM, Mr. BACA, Mr. WALDEN

of Oregon, Mr. GIBBONS, Mr. SHUSTER, Mr. BACHUS, Mr. ISSA, Mr.

DEMINT, Mr. MORAN of Kansas, Mr. RAHALL, Mr. SMITH of Michigan,

Mr. WELLER, Mr. RENZI, Mr. UPTON, Mr. BARTON of Texas, Mr.

COBLE, Mr. ROGERS of Michigan, Mr. BASS, Mr. SHADEGG, Mr.

SOUDER, Mr. BURR, Mr. BURTON of Indiana, Mr. CANTOR, Mrs.

MYRICK, Mr. BERRY, Mr. JANKLOW, Mr. TIBERI, Mrs. JO ANN DAVIS

of Virginia, Mr. FRANKS of Arizona, Mr. HUNTER, Mr. TAYLOR of Mississippi, Mr. JENKINS, Mr. POMBO, Mr. KANJORSKI, Mr. CARTER, Mr.


I1036.AAB
35

2

•HR 1036 IH

NORWOOD, Mr. ADERHOLT, Mr. ISAKSON, Mr. GOODLATTE, Mr. LUCAS

of Oklahoma, Mr. HEFLEY, Mr. THOMPSON of California, Mr. KING of

Iowa, Mr. WELDON of Florida, Mr. BOSWELL, Mr. NUNES, Mr. COX, Mr.

OTTER, Mrs. CUBIN, Mr. DELAY, Mr. KLINE, Mr. BARTLETT of Maryland, Mr. GRAVES, Mr. REYNOLDS, Mr. BRADLEY of New Hampshire,

Mr. MARIO DIAZ-BALART of Florida, Mr. LINDER, Mr. STENHOLM, Mr.

CRAMER, Mr. BOEHNER, Mr. WHITFIELD, Mr. HAYES, Mr. GORDON, Mr.

CRENSHAW, Mr. FLETCHER, Mr. COLE, Mr. SULLIVAN, Mr. CARDOZA,

Mr. WAMP, Mr. THORNBERRY, Mr. TAYLOR of North Carolina, Mr.

CULBERSON, Mr. BLUNT, Mr. STUPAK, Mr. EHLERS, Mr. MCHUGH, Mr.

OXLEY, Mr. GUTKNECHT, Mr. ISTOOK, Mr. GREEN of Wisconsin, Mr.

LAHOOD, Mr. GREENWOOD, Mr. HULSHOF, Mr. NUSSLE, Mr. BARRETT

of South Carolina, Mr. MCCOTTER, Mr. BONNER, Mr. HASTINGS of

Washington, Mr. SWEENEY, Mr. REYES, Mr. WOLF, Mr. DAVIS of Alabama, Mr. GOSS, Mr. SKELTON, Mr. TOM DAVIS of Virginia, Mr.

LOBIONDO, Mr. HOEKSTRA, Mr. HYDE, Mr. SMITH of Texas, Mrs.

EMERSON, Mr. SANDLIN, Mrs. BLACKBURN, Mr. MANZULLO, Mr. REGULA, Mr. MCKEON, Mr. ALEXANDER, Mr. BAKER, Mr. DUNCAN, Mr.

TANNER, Mr. HENSARLING, Mr. BONILLA, Mr. SESSIONS, Ms. HARRIS,

Mr. BOOZMAN, Mr. MCCRERY, Mr. COLLINS, Mr. DREIER, Mr. FEENEY,

Mrs. BONO, Mr. TAUZIN, Mr. LEWIS of California, Mr. ENGLISH, Mr.

PLATTS, Mr. SHIMKUS, Mr. CAMP, Mr. GARRETT of New Jersey, Mr.

TURNER of Texas, Mr. OSE, Mr. OSBORNE, Mr. PORTMAN, Mr. WELDON

of Pennsylvania, Mr. HOBSON, Mr. PETERSON of Pennsylvania, Mr.

MOLLOHAN, Mrs. MUSGRAVE, Mr. COMBEST, Mr. CHABOT, Ms. GRANGER, Mr. SHERWOOD, Mrs. BIGGERT, Mr. SAM JOHNSON of Texas, Mrs.

KELLY, Mr. BURNS, Mr. ROYCE, Mr. LATOURETTE, Mr. SAXTON, Mr.

GILLMOR, Mr. JONES of North Carolina, Mr. PORTER, Mr. THOMAS, Mr.

TIAHRT, and Mr. RYUN of Kansas) introduced the following bill; which

was referred to the Committee on the Judiciary

A BILL

To prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or

importers of firearms or ammunition for damages 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,


I1036.AAC
36

3

•HR 1036 IH

1 SECTION 1. SHORT TITLE.

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

3 Commerce in Arms Act’’.

4 SEC. 2. FINDINGS; PURPOSES.

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

6 (1) Citizens have a right, protected by the Sec7 ond Amendment to the United States Constitution,

8 to keep and bear arms.

9 (2) Lawsuits have been commenced against

10 manufacturers, distributors, dealers, and importers

11 of firearms that operate as designed and intended,

12 which seek money damages and other relief for the

13 harm caused by the misuse of firearms by third par14 ties, including criminals.

15 (3) The manufacture, importation, possession,

16 sale, and use of firearms and ammunition in the

17 United States are heavily regulated by Federal,

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

19 Gun Control Act of 1968, the National Firearms

20 Act, and the Arms Export Control Act.

21 (4) Businesses in the United States that are en22 gaged in interstate and foreign commerce through

23 the lawful design, manufacture, marketing, distribu24 tion, importation, or sale to the public of firearms or

25 ammunition that has been shipped or transported in

26 interstate or foreign commerce are not, and should


I1036.AAD
37

4

•HR 1036 IH

1 not, be liable for the harm caused by those who

2 criminally or unlawfully misuse firearm products or

3 ammunition products that function as designed and

4 intended.

5 (5) The possibility of imposing liability on an

6 entire industry for harm that is solely caused by oth7 ers is an abuse of the legal system, erodes public

8 confidence in our Nation’s laws, threatens the dimi9 nution of a basic constitutional right and civil lib10 erty, invites the disassembly and destabilization of

11 other industries and economic sectors lawfully com12 peting in the free enterprise system of the United

13 States, and constitutes an unreasonable burden on

14 interstate and foreign commerce of the United

15 States.

16 (6) The liability actions commenced or con17 templated by the Federal Government, States, mu18 nicipalities, and private interest groups are based on

19 theories without foundation in hundreds of years of

20 the common law and jurisprudence of the United

21 States and do not represent a bona fide expansion

22 of the common law. The possible sustaining of these

23 actions by a maverick judicial officer or petit jury

24 would expand civil liability in a manner never con25 templated by the Framers of the Constitution, by


I1036.AAE
38

5

•HR 1036 IH

1 the Congress, or by the legislatures of the several

2 states. Such an expansion of liability would con3 stitute a deprivation of the rights, privileges, and

4 immunities guaranteed to a citizen of the United

5 States under the Fourteenth Amendment to the

6 United States Constitution.

7 (b) PURPOSES.—The purposes of this Act are as fol8 lows:

9 (1) To prohibit causes of action against manu10 facturers, distributors, dealers, and importers of

11 firearms or ammunition products for the harm

12 caused by the criminal or unlawful misuse of firearm

13 products or ammunition products by others when

14 the product functioned 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.


I1036.AAF
39

6

•HR 1036 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 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL

8 LIABILITY ACTIONS IN FEDERAL OR STATE

9 COURT.

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

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

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

13 civil liability action that is pending on the date of the en14 actment of this Act shall be dismissed immediately by the

15 court in which the action was brought.

16 SEC. 4. DEFINITIONS.

17 In this Act:

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

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

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

21 States Code, and, as applied to a seller of ammuni22 tion, means a person who devotes, time, attention,

23 and labor to the sale of ammunition as a regular

24 course of trade or business with the principal objecVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00039 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059

I1036.AAG
40

7

•HR 1036 IH

1 tive of livelihood and profit through the sale or dis2 tribution of ammunition.

3 (2) MANUFACTURER.—The term ‘‘manufac4 turer’’ means, with respect to a qualified product, a

5 person who is engaged in the business of manufac6 turing the product in interstate or foreign commerce

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

8 manufacturer under chapter 44 of title 18, United

9 States Code.

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

11 individual, corporation, company, association, firm,

12 partnership, society, joint stock company, or any

13 other entity, including any governmental entity.

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

15 product’’ means a firearm (as defined in subpara16 graph (A) or (B) of section 921(a)(3) of title 18,

17 United States Code, including any antique firearm

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

19 ammunition (as defined in section 921(a)(17) of

20 such title), or a component part of a firearm or am21 munition, that has been shipped or transported in

22 interstate or foreign commerce.

23 (5) QUALIFIED CIVIL LIABILITY ACTION.—

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

25 civil liability action’’ means a civil action


I1036.AAH
41

8

•HR 1036 IH

1 brought by any person against a manufacturer

2 or seller of a qualified product, or a trade asso3 ciation, for damages resulting from the criminal

4 or unlawful misuse of a qualified product by the

5 person or a third party, but shall not include—

6 (i) an action brought against a trans7 feror convicted under section 924(h) of

8 title 18, United States Code, or a com9 parable or identical State felony law, by a

10 party directly harmed by the conduct of

11 which the transferee is so convicted;

12 (ii) an action brought against a seller

13 for negligent entrustment or negligence per

14 se;

15 (iii) an action in which a manufac16 turer or seller of a qualified product know17 ingly and willfully violated a State or Fed18 eral statute applicable to the sale or mar19 keting of the product, and the violation

20 was a proximate cause of the harm for

21 which relief is sought;

22 (iv) an action for breach of contract

23 or warranty in connection with the pur24 chase of the product; or


I1036.AAI
42

9

•HR 1036 IH

1 (v) an action for physical injuries or

2 property damage resulting directly from a

3 defect in design or manufacture of the

4 product, when used as intended.

5 (B) NEGLIGENT ENTRUSTMENT.—In sub6 paragraph (A)(ii), the term ‘‘negligent entrust7 ment’’ means the supplying of a qualified prod8 uct by a seller for use by another person when

9 the seller knows or should know the person to

10 whom the product is supplied is likely to use

11 the product, and in fact does use the product,

12 in a manner involving unreasonable risk of

13 physical injury to the person and others.

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

15 respect to a qualified product—

16 (A) an importer (as defined in section

17 921(a)(9) of title 18, United States Code) who

18 is engaged in the business as such an importer

19 in interstate or foreign commerce and who is li20 censed to engage in business as such an im21 porter under chapter 44 of title 18, United

22 States Code;

23 (B) a dealer (as defined in section

24 921(a)(11) of title 18, United States Code) who

25 is engaged in the business as such a dealer in


I1036.AAJ
43

10

•HR 1036 IH

1 interstate or foreign commerce and who is li2 censed to engage in business as such a dealer

3 under chapter 44 of title 18, United States

4 Code; or

5 (C) a person engaged in the business of

6 selling ammunition (as defined in section

7 921(a)(17) of title 18, United States Code) in

8 interstate or foreign commerce at the wholesale

9 or retail level, consistent with Federal, State,

10 and local law.

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

12 the several States of the United States, the District

13 of Columbia, the Commonwealth of Puerto Rico, the

14 Virgin Islands, Guam, American Samoa, and the

15 Commonwealth of the Northern Mariana Islands,

16 and any other territory or possession of the United

17 States, and any political subdivision of any such

18 place.

19 (8) TRADE ASSOCIATION.—The term ‘‘trade as20 sociation’’ means any association or business organi21 zation (whether or not incorporated under Federal

22 or State law) that is not operated for profit, and 2

23 or more members of which are manufacturers or

24 sellers of a qualified product.

Æ


I1036.AAK
44

Chairman SENSENBRENNER. Without objection the amendment in 

the nature of a substitute which all Members have before them will 

be considered as read, considered as the original text for purposes 

of amendment, and will be open for amendment at any point. 

[The amendment in the nature of a substitute follows:]

45 H.L.C.

AMENDMENT IN THE NATURE OF A SUBSTITUTE

TO H.R. 1036

OFFERED BY MR. CANNON

Strike all after the enacting clause and insert the

following:

1 SECTION 1. SHORT TITLE.

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

3 Commerce in Arms Act’’.

4 SEC. 2. FINDINGS; PURPOSES.

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

6 (1) Citizens have a right, protected by the Sec7 ond Amendment to the United States Constitution,

8 to keep and bear arms.

9 (2) Lawsuits have been commenced against

10 manufacturers, distributors, dealers, and importers

11 of firearms that operate as designed and intended,

12 which seek money damages and other relief for the

13 harm caused by the misuse of firearms by third par14 ties, including criminals.

15 (3) The manufacture, importation, possession,

16 sale, and use of firearms and ammunition in the

17 United States are heavily regulated by Federal,

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


A1036.AAB
46

2

H.L.C.

1 Gun Control Act of 1968, the National Firearms

2 Act, and the Arms Export Control Act.

3 (4) Businesses in the United States that are en4 gaged in interstate and foreign commerce through

5 the lawful design, manufacture, marketing, distribu6 tion, importation, or sale to the public of firearms or

7 ammunition that has been shipped or transported in

8 interstate or foreign commerce are not, and should

9 not, be liable for the harm caused by those who

10 criminally or unlawfully misuse firearm products or

11 ammunition products that function as designed and

12 intended.

13 (5) The possibility of imposing liability on an

14 entire industry for harm that is solely caused by oth15 ers is an abuse of the legal system, erodes public

16 confidence in our Nation’s laws, threatens the dimi17 nution of a basic constitutional right and civil lib18 erty, invites the disassembly and destabilization of

19 other industries and economic sectors lawfully com20 peting in the free enterprise system of the United

21 States, and constitutes an unreasonable burden on

22 interstate and foreign commerce of the United

23 States.

24 (6) The liability actions commenced or con25 templated by the Federal Government, States, muVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00046 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059

A1036.AAC
47

3

H.L.C.

1 nicipalities, and private interest groups are based on

2 theories without foundation in hundreds of years of

3 the common law and jurisprudence of the United

4 States and do not represent a bona fide expansion

5 of the common law. The possible sustaining of these

6 actions by a maverick judicial officer or petit jury

7 would expand civil liability in a manner never con8 templated by the Framers of the Constitution, by

9 the Congress, or by the legislatures of the several

10 states. Such an expansion of liability would con11 stitute a deprivation of the rights, privileges, and

12 immunities guaranteed to a citizen of the United

13 States under the Fourteenth Amendment to the

14 United States Constitution.

15 (b) PURPOSES.—The purposes of this Act are as fol16 lows:

17 (1) To prohibit causes of action against manu18 facturers, distributors, dealers, and importers of

19 firearms or ammunition products for the harm

20 caused by the criminal or unlawful misuse of firearm

21 products or ammunition products by others when

22 the product functioned as designed and intended.

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

24 firearms and ammunition for all lawful purposes, inVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059

A1036.AAD
48

4

H.L.C.

1 cluding hunting, self-defense, collecting, and com2 petitive or recreational shooting.

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

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

5 Fourteenth Amendment to the United States Con6 stitution, pursuant to section 5 of that Amendment.

7 (4) To prevent the use of such lawsuits to im8 pose unreasonable burdens on interstate and foreign

9 commerce.

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

11 Amendment to the Constitution, of manufacturers,

12 distributors, dealers, and importers of firearms or

13 ammunition products, and trade associations, to

14 speak freely, to assemble peaceably, and to petition

15 the Government for a redress of their grievances.

16 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL

17 LIABILITY ACTIONS IN FEDERAL OR STATE

18 COURT.

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

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

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

22 civil liability action that is pending on the date of the en23 actment of this Act shall be dismissed immediately by the

24 court in which the action was brought or is currently pend25 ing.


A1036.AAE
49

5

H.L.C.

1 SEC. 4. DEFINITIONS.

2 In this Act:

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

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

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

6 States Code, and, as applied to a seller of ammuni7 tion, means a person who devotes, time, attention,

8 and labor to the sale of ammunition as a regular

9 course of trade or business with the principal objec10 tive of livelihood and profit through the sale or dis11 tribution of ammunition.

12 (2) MANUFACTURER.—The term ‘‘manufac13 turer’’ means, with respect to a qualified product, a

14 person who is engaged in the business of manufac15 turing the product in interstate or foreign commerce

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

17 manufacturer under chapter 44 of title 18, United

18 States Code.

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

20 individual, corporation, company, association, firm,

21 partnership, society, joint stock company, or any

22 other entity, including any governmental entity.

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

24 product’’ means a firearm (as defined in subpara25 graph (A) or (B) of section 921(a)(3) of title 18,

26 United States Code, including any antique firearm


A1036.AAF
50

6

H.L.C.

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

2 ammunition (as defined in section 921(a)(17) of

3 such title), or a component part of a firearm or am4 munition, that has been shipped or transported in

5 interstate or foreign commerce.

6 (5) QUALIFIED CIVIL LIABILITY ACTION.—

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

8 civil liability action’’ means a civil action

9 brought by any person against a manufacturer

10 or seller of a qualified product, or a trade asso11 ciation, for damages or injunctive relief result12 ing from the criminal or unlawful misuse of a

13 qualified product by the person or a third

14 party, but shall not include—

15 (i) an action brought against a trans16 feror convicted under section 924(h) of

17 title 18, United States Code, or a com18 parable or identical State felony law, by a

19 party directly harmed by the conduct of

20 which the transferee is so convicted;

21 (ii) an action brought against a seller

22 for negligent entrustment or negligence per

23 se;

24 (iii) an action in which a manufac25 turer or seller of a qualified product knowVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00050 Fmt 6659 Sfmt 6601 E:\HR\OC\HR059.XXX HR059

A1036.AAG
51

7

H.L.C.

1 ingly and willfully violated a State or Fed2 eral statute applicable to the sale or mar3 keting of the product, and the violation

4 was a proximate cause of the harm for

5 which relief is sought;

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 physical injuries or

10 property damage resulting directly from a

11 defect in design or manufacture of the

12 product, when used as intended.

13 (B) NEGLIGENT ENTRUSTMENT.—In sub14 paragraph (A)(ii), the term ‘‘negligent entrust15 ment’’ means the supplying of a qualified prod16 uct by a seller for use by another person when

17 the seller knows or should know the person to

18 whom the product is supplied is likely to use

19 the product, and in fact does use the product,

20 in a manner involving unreasonable risk of

21 physical injury to the person and others.

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

23 respect to a qualified product—

24 (A) an importer (as defined in section

25 921(a)(9) of title 18, United States Code) who


A1036.AAH
52

8

H.L.C.

1 is engaged in the business as such an importer

2 in interstate or foreign commerce and who is li3 censed to engage in business as such an im4 porter under chapter 44 of title 18, United

5 States Code;

6 (B) a dealer (as defined in section

7 921(a)(11) of title 18, United States Code) who

8 is engaged in the business as such a dealer in

9 interstate or foreign commerce and who is li10 censed to engage in business as such a dealer

11 under chapter 44 of title 18, United States

12 Code; or

13 (C) a person engaged in the business of

14 selling ammunition (as defined in section

15 921(a)(17) of title 18, United States Code) in

16 interstate or foreign commerce at the wholesale

17 or retail level, consistent with Federal, State,

18 and local law.

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

20 the several States of the United States, the District

21 of Columbia, the Commonwealth of Puerto Rico, the

22 Virgin Islands, Guam, American Samoa, and the

23 Commonwealth of the Northern Mariana Islands,

24 and any other territory or possession of the United


A1036.AAI
53

9

H.L.C.

1 States, and any political subdivision of any such

2 place.

3 (8) TRADE ASSOCIATION.—The term ‘‘trade as4 sociation’’ means any association or business organi5 zation (whether or not incorporated under Federal

6 or State law) that is not operated for profit, and 2

7 or more members of which are manufacturers or

8 sellers of a qualified product.


A1036.AAJ
54

Chairman SENSENBRENNER. I now recognize myself for 5 minutes 

to explain the bill. H.R. 1036 will stop ludicrous lawsuits against 

the manufacturer or seller of firearms or ammunition from harm 

resulting from the criminal or unlawful misuse of their products by 

prohibiting such lawsuits from being filed in State or Federal 

Court. Logic and fairness dictate that manufacturers and merchants should not be held responsible for the unlawful use of their 

lawful products. 

H.R. 1036, which has significant bipartisan support, does not 

preclude lawsuits against the person who transfers a firearm knowing that it will be used to commit a crime of violence or a drug trafficking crime. It also 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 and willfully violates a State or Federal 

statute applicable to sales or marketing when such violation was 

the proximate cause of the harm for which the 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 design or manufacture of a firearm or ammunition. 

The amendment in the nature of a substitute clarifies that current cases must also be dismissed if pending in an appeals court. 

The intention of the bill is to provide for the disposal of all qualified actions, and this amendment does that. The amendment in the 

nature of a substitute also clarifies that the definition of the term 

‘‘qualified civil liability action’’ also includes actions for injunctive 

relief that do not seek monetary damages. Actions for injunctive relief, for example, seek to change the way the firearms industry operates to impose restrictions on the number of guns that can be 

sold, and the way in which guns can be manufactured, including 

guns sold to the police and to the military. Because such actions, 

just as those for monetary damages, seek to usurp the legislative 

power and bypass consideration of these issues in a democratic 

manner, such actions should also be covered by the bill, and the 

amendment does that. 

Recent litigation against the tobacco industry has inspired lawsuits against the firearms industry on theories of liability that 

would hold it liable for the actions of those who use their products 

in a criminal or unlawful manner. Such lawsuits threaten to rip 

tort law from its moorings in personal responsibility and to force 

firearms manufacturers into bankruptcy. 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. Lawsuits seeking to hold the 

firearms industry responsible for the criminal and unlawful use of 

its products are brazen attempts to accomplish through litigation 

what has not been achieved by legislation in 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 judge, 

quote, ‘‘The plaintiffs’ attorneys simply want to eliminate handguns.’’

55

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. Such State lawsuits 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 in firearms, Congress also has the authority 

to act under the Commerce Clause of the Constitution. 

In 1985 one Federal judge said it would be nonsensical to claim 

that a product can be defective under the law when it has no defect. He predicted that the plaintiff’s unconventional application of 

tort law against such a product would also apply to automobiles, 

knives and even high-calorie food. Heaven forbid. 

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 could follow the tobacco industry in reimbursing 

Government expenditures,’’ unquote. 

Only a few years later a disastrous new age of litigation is already upon us, and even once fanciful lawsuits against fast food 

companies are proliferating. Congress must do what it can to stop 

the slide down the slippery slope. I hope this bill is adopted, and 

recognize the gentleman from Michigan. 

Mr. CONYERS. Thank you, Mr. Chairman. I ask unanimous consent to enter my prepared statement into the record. 

Chairman SENSENBRENNER. Without objection the statement will 

be entered, and without objection all Members may insert opening 

statements in the record. Gentleman from Michigan. 

[The statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN

I have a number of concerns with the legislation before us. 

First, contrary to the assertions of many of the bill’s proponents, this bill is not 

limited to lawsuits brought by cities against the gun industry for marketing to 

criminals. Whatever one thinks of those suits, Members should know that this is 

a very small part of this bill. As a matter of fact, the bill is drafted so broadly, it 

would even apply to prevent gun enthusiasts who are injured by defective guns from 

getting their day in court. In other words, the bill eliminates product liability lawsuits involving firearms. 

In this regard, the bill discourages gun manufacturers from adopting reasonable 

design safety enhancements such as ‘‘gun locks’’ or gun safety triggers by substantially limiting the type of permissible product liability actions that plaintiffs can 

bring against gun manufacturers. 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 harms. This provision 

is far too broad, considering the increasingly high number of accidents being reported that could have been prevented if manufacturers had adopted reasonable 

safety features. 

In addition, the bill irresponsibly protects dealers who recklessly sell to gun traffickers knowing (or with reason to know) that the trafficker intends to resell the 

guns to criminals. This exemption from liability is achieved as a result of the bill’s 

narrow definition of ‘‘negligent entrustment’’. The bill defines ‘‘negligent entrustment’’ to include only initials transfers completed between the original seller and 

purchaser of a gun. It does not include secondary transfers even when the original 

seller is aware of the purchaser’s intent to resell to a particular individual. 

Another problem with the bill is that is shields sellers and manufacturers from 

liability even where they engage in unlawful sales. In other words, the bill applies 

to persons who sell guns in violation of the Brady law. For example, you can sell 

a gun to an individual who has been convicted of domestic violence and still be imVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00055 Fmt 6659 Sfmt 6621 E:\HR\OC\HR059.XXX HR059
56

mune from liability under this bill. To me, this is not a desirable public policy outcome. 

Finally, the bill undermines the Supreme Court’s longstanding interpretation of 

the Second Amendment to the Constitution by including in its findings language 

conferring an individual right to keep and bear arms, without qualifying this right 

as the Court has repeatedly done. Over the past sixty years, the Supreme Court has 

gone to great lengths to explain that the right conferred by the Second Amendment 

only exists in relationship ‘‘to the preservation or efficiency of a well regulated militia.’’

HR 1036 sends the wrong message to manufacturers, dealers and other members 

of the gun industry at a time when our cities and communities are plagued with 

random acts of gun violence. I urge a no vote.

[The statement of Mr. King follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE KING, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IOWA

Mr. Chairman, The issue we have before us today is of vital importance. Recent 

lawsuits against gun manufacturers and dealers are aimed at driving them out of 

business. We cannot hold gun manufacturers and dealers liable for the criminal acts 

of third parties who are totally beyond their control. 

I strongly support this bill which provides that lawsuits may not be brought 

against manufacturers and sellers of firearms or ammunition if the suits are based 

on criminal or unlawful use of the product by a third party and that existing lawsuits must be dismissed. 

I am a stalwart defender of our Second Amendment freedoms. I oppose any attempt to water down the principles embodied in the Second Amendment. The first 

and most important reason for the Second Amendment, as intended by our Founding Fathers, was to provide a deterrent to tyrants. The Second Amendment not only 

guarantees citizens a right to keep and bear arms for self-defense, defense of property, hunting and other purposes, but it was also intended as a bulwark against tyranny. The right to keep and bear arms was meant to ensure that citizens can defend 

our democratic republic from despots and those who seek to take away our rights 

and free society.

[The statement of Mr. Goodlatte follows:]

PREPARED STATEMENT OF THE HONORABLE BOB GOODLATTE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA

Thank you, Mr. Chairman, for holding a markup of this important legislation. 

Despite the straightforward language in Article II of our Constitution regarding 

the right to bear arms, this right is the subject of constant bombardment by a select 

few. 

Targeted litigation is one way that an extreme minority can attempt to bring 

down the gun industry and thus the supply of lawful firearms to citizens. Recently, 

more than thirty cities and counties have filed lawsuits against the firearms industry alleging that the industry is liable for the actions of third parties, including 

those that use the lawful products in a criminal manner. Because of the prohibitive 

costs of defending these targeted lawsuits, the likely result of such litigation is that 

many legitimate firearms manufacturers could be forced to declare bankruptcy. If 

the courts are so allowed to decide the fate of gun manufacturers, then the courts 

will effectively be regulating the supply of firearms and thus the right of citizens 

to bear arms. 

However, legislatures, not courts, are the appropriate forums for deciding the 

scope of regulation for the firearms industry. Allowing the courts to create policy 

concerning these important regulatory matters would surely violate separation of 

powers principles. 

HR 1036, the Protection of Lawful Commerce in Arms Act, would prevent plaintiffs from bringing certain civil actions against firearms manufacturers and sellers 

for the criminal or unlawful misuse by third parties of properly made firearms. This 

bill will help to put an end to judicial legislating in the firearms field. It will also 

serve as an important statement that responsibility for wrongdoing should rest with 

the wrongdoer. 

As Oliver Wendell Holmes stated in an 1894 Harvard Law Review article, 

‘‘. . . 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, some one will buy a pistol of him for some unlawful end? . . . The principal 

57

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...’’

Thirty-one states have enacted legislation to prevent junk lawsuits against the 

firearms industry based on the criminal behavior of others. Thirty-one states have 

thus declared that the responsibility for wrongdoing should rest with wrongdoers. 

Congress should follow the lead of the states and enact HR 1036 into law.

Mr. CONYERS. And I would like now to yield to the Ranking 

Member of the Subcommittee, the gentleman from North Carolina, 

Mr. Watt. 

Mr. WATT. Thank you, Mr. Chairman, and Ranking Member. 

Let me just make several points. First of all, this bill came to the 

Subcommittee yesterday for a hearing. We got the statements of 

two of the witnesses who were testifying late in the evening night 

before last, one yesterday morning at the time of the hearing. The 

bill has had no markup in the Subcommittee, and so I think there 

is a substantial concern about whether the Committee and/or Subcommittee has done an adequate job of looking at the language of 

such a sweeping piece of legislation, whether the—whether it’s a 

good idea or not. 

There is also substantial concern about the timing of this,and our 

concern is that the bill is being pushed and rushed at this time, 

not for substantive reasons but for political reasons because it just 

so happens that a couple of weeks from now the NRA’s national 

convention is being held, and—or 3 weeks from now the NRA’s national convention is being held, and so there’s some question about 

whether this is really a substantive effort or whether it is a political effort. 

Timing issues aside, let me address the substance of the bill. 

First of all, the bill is based on findings that one can only characterize as a political dream world. They certainly are not findings 

that are substantiated in any way by a hearing record, nor are they 

findings that are substantiated in any way by what any court has 

determined to be the state of the law and what the Second Amendment says. For example, the second finding or the first finding in 

the findings in the bill talks about the right that is protected by 

the Second Amendment to the United States Constitution of citizens to keep and bear arms. That would be great, except that 

there’s simply no court that has ever substantiated that that’s 

what the Second Amendment means. And so we’ve made maybe an 

aspirational finding that some of my colleagues would like to have 

as a basis for passing this legislation, but certainly not a finding 

of fact that any court has ever substantiated, and it does seem to 

me that if there’s any place in this body called the Congress, the 

House of Representatives, that has an obligation to take the oath 

that each Member of this Congress takes seriously to uphold and 

defend the Constitution of the United States, if there is any place 

that that oath ought to have any integrity, it ought to be the Judiciary Committee of this House. 

And so to adopt a piece of legislation based on erroneous findings, based on erroneous statements about what the Constitution 

says, just seems to me to be a political fanciful world that we are 

living in. 

Finally——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

58

Mr. WATT. As had the Chairman when I walked in the room, and 

I was here 3 minutes before the Chairman stopped. I ask unanimous consent for three additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. WATT. I would just say related to the drafting of this bill, 

based on what the witnesses at the hearing yesterday said the purpose of the bill was, the bill goes well, well, well beyond any of 

those purposes, and creates some issues that I think have not been 

well thought out or researched, and while we will try to address 

some of those issues today, I think we are just doing everybody a 

disservice in trying to rush to a markup and favorable reporting of 

this bill for what appears to be more a political reason than any 

kind of—based on any kind of substantive merit that the bill may 

have. 

I thank the Chairman for his generosity in yielding additional 

time, and I’ll yield back. 

Chairman SENSENBRENNER. Are there amendments——

Mr. CONYERS. Mr. Chairman, I have an amendment. 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.R. 1036 offered by Mr. Conyers. 

Page 6, line 9, after ‘‘manufacturer’’ add ‘‘user.’’ [The amendment follows:]

Chairman SENSENBRENNER. The gentleman’s recognized for 5 

minutes. 

Mr. CONYERS. Chairman, I rise in support of the amendment 

which merely expands the scope of the bill to cover users of firearms as well as manufacturers. If we’re going to insulate people 

from negligent actions, I think we need to consider extending the 

protection not just to sellers but to all users of firearms. 

And so my amendment would flow with the proposal and interpretations of the Second Amendment that I heard yesterday at the 

Committee. 

If we’re going to insulate gun sellers from liability, should we not 

insulate gun users? After all, they can be harassed by frivolous 

suits just as well. If the Second Amendment means what I’ve been 

told it means in this Committee, it should mean the freedom from 

all negligence suits. Now, I think it can be argued that we already 

have the full force of the criminal laws to crack down on persons 

who misuse handguns. Some might think it a waste of time and 

resources to involve our courts in civil actions against gun users, 

and so I hope that my amendment will be adopted by a majority 

of Members in this Committee. 


A1036A.eps
59

And I return any unused time. 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes in opposition to the amendment. Valentine’s Day was almost 2 months ago, and this amendment I think is attempting to 

love this bill to death. Perhaps the Postal Service has been a little 

bit slow in delivering the valentines from the gentleman from 

Michigan. 

But what the amendment does is it turns tort law on its head 

because it prohibits a lawsuit against a user of a legal product for 

negligence. This is grossly overreaching. I don’t think that the intent of the bill is to do that. The intent of the bill is to prevent people from suing manufacturers when someone else uses a firearm in 

a criminal manner. I would hope that the amendment would be 

voted down, and yield back the balance of my time. 

Mr. WATT. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from North Carolina. 

Mr. WATT. Thank you, Mr. Chairman. I’m going to rise in opposition to the amendment too, not because—I think, as my mother 

used to say, two wrongs don’t make a right. The underlying bill is 

a wrong. The amendment would be an additional wrong. While I 

understand the reason for the gentleman offering it, the underlying 

bill is just as ridiculous in many respects as the amendment that’s 

being offered. I’m not—I’m going to resist the temptation to join in 

my colleague’s effort to make fun of this bill in this way. This is 

not fun and games in which we are operating. 

As we heard yesterday from one of the witnesses, a former police 

officer who had been attacked and shot by a gun that—and would 

have his lawsuit eviscerated by this legislation. This is not a joking 

matter. Guns are not joking matters. And I think we have an obligation to respect the use of guns by people who are using them for 

legitimate purposes, but we also have a right to expect a level of 

responsibility on the part of manufacturers, designers, sellers, and 

users of guns, and I think the current state of the law has developed a reasonable balance. It needs some tinkering. Maybe some of 

the gun laws need to be retooled in some way, but I don’t think 

a massive change in the tort standards, in the liability standards 

in this country is what is called for at this time. 

Mr. CONYERS. Would the gentleman yield to me? 

Mr. WATT. I’m happy to yield to my friend. 

Mr. CONYERS. I’m discouraged by the nonenthusiasm of the 

Ranking Member, but if I could consult with the NRA leader, 

Chuck Cunningham, about this amendment, and see what he feels 

about it, I would feel a lot better about that. 

Where’s Chuck? What do you think? 

Chairman SENSENBRENNER. Well, the Chair will rule that out of 

order because this is a markup where——

Mr. CONYERS. You can give me a thumbs up, Chuck, if it’s okay. 

Chairman SENSENBRENNER.—only Members of the Committee 

can participate. If the gentleman from Michigan and Mr. 

Cunningham want to meet in the hallway, they’re perfectly welcome to do so. 

Mr. CONYERS. Well, I thank——

Mr. CANNON. Mr. Chairman, no guns in that meeting, right? 

Chairman SENSENBRENNER. Brass knuckles perhaps. 

60

Mr. WATT. Well, I think this exchange kind of illustrates the 

mockery that we are making of this process. The bill itself is a 

mockery. We want to treat this subject as fun and games, but it’s 

not. And I think we are doing ourselves a disservice. I think we are 

doing the Judiciary Committee a disservice to pass a bill out of 

here that has findings in it that everybody sitting on this Committee knows are just outrageous and wrong and inconsistent with 

what the courts have said the Constitution means, and inconsistent 

with what it has meant throughout the history of this country. We 

are making a mockery of ourselves and this process in my opinion. 

And we can sit here and joke about it. We can make light of it. But 

I tell you, there’s nothing worse than seeing some victim of gun violence to make you understand how serious this bill is, and the notion that we could talk about taking away—— Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. CONYERS. Would the gentleman yield? 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. WATT. I ask unanimous consent for one additional minute. 

Chairman SENSENBRENNER. Without objection. 

Mr. WATT. I yield to the gentleman. 

Mr. CONYERS. I thank the distinguished Ranking Member of the 

Subcommittee. 

Mr. Chairman, I withdraw this amendment. 

Chairman SENSENBRENNER. The amendment is withdrawn. Are 

there further amendments? 

Ms. JACKSON LEE. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose the gentlewoman 

from Texas seek recognition? 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. JACKSON LEE. No. 13 if that’s how it’s recorded, or No. 1 

Jackson Lee. 

The CLERK. Mr. Chairman, I don’t have an amendment from Ms. 

Jackson Lee. 

Chairman SENSENBRENNER. There is no amendment from Ms. 

Jackson Lee. Are there further amendments? Gentleman from 

North Carolina, for what purpose do you seek recognition? 

Mr. WATT. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Mr. WATT. Let me just make sure I know which one. Let’s do 

Watt No. 2. 

Chairman SENSENBRENNER. The clerk will report Watt 2. 

The CLERK. Mr. Chairman, I don’t have Mr. Watt’s amendment. 

Chairman SENSENBRENNER. Are there further amendments? 

Mr. WATT. We’re getting ready to correct that problem, Mr. 

Chairman. It’s right there. 

Chairman SENSENBRENNER. There are no further amendments. 

The question——

Mr. WATT. I have an amendment at the desk, Mr. Chairman. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

61

The CLERK. Amendment to the amendment in the nature of a 

substitute to H.R. 1036 offered by Mr. Watt. Page 1, line 10, after 

‘‘manufacturers’’ strike ‘‘distributors, dealers and importers.’’ Page 

1——

Chairman SENSENBRENNER. Without objection the amendment 

is——

Mr. WATT. I object. 

Chairman SENSENBRENNER. The clerk will continue to read. 

The CLERK. Page 1, line 15, after ‘‘manufacture’’ strike ‘‘importation, possession, sale and use.’’ Page 2, line 5, after ‘‘design’’ strike the comma and insert ‘‘and.’’ Chairman SENSENBRENNER. Without objection the—— Mr. WATT. I object. 

Chairman SENSENBRENNER. The clerk will continue to read. 

The CLERK. Page 2, line 5, after ‘‘manufacture’’ strike all that follows through the word ‘‘public’’ on line 6. 

Page 2, line 13 through—— Mr. CANNON. Mr. Chairman, point of order. 

Chairman SENSENBRENNER. Gentleman from—— Mr. CANNON. If the other side needs time to prepare their 

amendments, could we take a 5-minute recess of something instead 

of going through this charade of reading a long—— Chairman SENSENBRENNER. Well, that is not a valid point of 

order. Does the gentleman ask unanimous consent for a 5-minute 

recess? 

Mr. CANNON. I do. 

Chairman SENSENBRENNER. Without objection the Committee 

will be recessed for 5 minutes. 

[Recess.] 

Chairman SENSENBRENNER. The Committee will be in order. 

Pending at the time of the recess was an amendment to the amendment in the nature of a substitute offered by the gentleman from 

North Carolina, Mr. Watt. 

The clerk will continue to read. 

The CLERK. Page 2, lines 13 and 14, strike ‘‘on an entire industry’’ and insert ‘‘firearm’’——

Mr. CANNON. Mr. Chairman, I ask unanimous consent that reading be—— Mr. WATT. Objection. 

Chairman SENSENBRENNER. Clerk will continue to read. 

The CLERK.—‘‘and ammunition manufacturers.’’

Page 3, line 18, strike ‘‘distributors, dealers and importers.’’

Page 3, line 20, strike ‘‘or unlawful.’’

Page 4, line 11, after ‘‘manufacturers’’ strike the comma and all 

that follows through ‘‘associations’’ on line 13. 

Page 5, line 6, after ‘‘Code’’ strike the comma and all that follows 

through ‘‘ammunition’’ on line 11. 

Page 6, lines 10 through 11, strike ‘‘or seller of a qualified product or a trade association.’’ Page 6, line 12, strike ‘‘or unlawful.’’ Page 6, strike lines 15 through 23. 

Page 6, line 24, strike ‘‘(iii)’’ and insert ‘‘(i)’’. Page 6, line 25, strike ‘‘or seller of.’’ Page 7, lines 2 through 3, strike ‘‘sale or marketing’’ and insert ‘‘design or manufacturer.’’

62

Page 7, line 6 strike ‘‘(iv)’’ and insert ‘‘(ii)’’. Page 7, line 9, strike ‘‘(v)’’ and insert ‘‘(iii)’’. Page 7, strike line 13 and all that follows through page 8, line 

18. 

Page 8, line 19, strike ‘‘(7)’’ and insert ‘‘(6)’’. Page 9, strike line 3 and all that follows. 

[The amendment follows:]

63


A36B1.eps
64


A36B2.eps
65

Chairman SENSENBRENNER. The gentleman from North Carolina’s recognized for 5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. I would just say to the 

Members of the Committee, I had this read in an effort to return 

us to a serious deliberation about this bill, and contrary to what 

my friend, Mr. Cannon suggested, in an effort to make sure that 

you all read what I had written and what was being proposed and 

that somebody understood it, not that I had read it. I had already 

read it many times. 

The reason I offer this amendment is because based on all of the 

testimony that was offered at the hearing yesterday, this is what 

the witnesses said the bill was designed to do. The bill, as it’s 

drawn, applies to manufacturers, distributors, sellers, dealers, importers, the whole range of people involved in the gun distribution 

industry. The effect of this amendment would be to limit the immunity that this bill gives to manufacturers only. And if that’s what 

the purpose that was set out to accomplish was, and that’s what 

all of the testimony yesterday suggested, then I think—and if we’re 

going to have a serious deliberation about the merits or lack of 

merits of this bill, then I think it needs to be in the context of this 

amendment, because as we submitted evidence yesterday and illustrated there is substantial irresponsible conduct being—taking 

place on the part of sellers and dealers in this industry. 

The manufacturers have in fact done a reasonably good job of 

trying to, some of them, trying to respond to the danger of the instruments that they produced and put into the marketplace. Some 

of them have adopted the notion of trigger locks and safety locks 

and the high-tech kinds of things. They are trying to make an effort to make their products safer, and when kids get them, not to 

have them injured and killed, and even when criminals get them, 

not to have them injured and killed. 

But there are sellers and dealers in this industry who have been 

completely irresponsible, and the GAO report that I’m getting 

ready to submit for the record, and I ask unanimous consent to 

submit it, indicates——

Chairman SENSENBRENNER. Without objection. 

[The material referred to follows:]

66


GAO1.eps
67


GAO2.eps
68


GAO3.eps
69


GAO4.eps
70


GAO5.eps
71


GAO6.eps
72


GAO7.eps
73


GAO8.eps
74


GAO9.eps
75


GAO10.eps
76


GAO11.eps
77


GAO12.eps
78


GAO13.eps
79


GAO14.eps
80


GAO15.eps
81


GAO16.eps
82


GAO17.eps
83


GAO18.eps
84


GAO19.eps
85


GAO20.eps
86


GAO21.eps
87


GAO22.eps
88


GAO23.eps
89


GAO24.eps
90


GAO25.eps
91

Mr. WATT.—time after time after time where sellers and dealers 

of these instruments have exercised absolutely no responsibility. 

And so if you’re going to try to reward the people who are trying 

to do right by doing something good for them, then this amendment 

is the context in which it ought to be done because it limits the application of this bill solely to the manufacturers, and they are the 

ones—and some of them haven’t gone as far as I would like either—but some of them are trying to make some responsible steps 

and be responsive to the public. And if there’s a justification for 

doing any of this—and I don’t think there is—but if there is, it 

ought to be done in the context of this amendment because that’s 

what all the testimony yesterday was designed to strike at, and so 

if you are serious about this, rather than simply wanting to make 

a joke of it and make our institution a mockery, then what I would 

suggest is that we get together and have a bill which we could 

spend some time actually talking about, and instead of making a 

unanimous consent not to even read what we’re looking at, let’s get 

serious and roll up our sleeves and try to do something responsible. 

I yield back. 

Mr. CANNON. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Utah. 

Mr. CANNON. Mr. Chairman, I move the previous question on the 

amendment, the amendment in the nature of a substitute and the 

bill. 

Chairman SENSENBRENNER. The motion is nondebatable. Those 

in favor of ordering the previous question on the amendment, the 

amendment in the nature of a substitute, and the bill will say aye. 

Opposed no. 

The ayes appear to have it. 

Mr. SCOTT. rollcall. 

Chairman SENSENBRENNER. rollcall is ordered. Those in favor of 

ordering the previous question on the amendment, the amendment 

in the nature of a substitute, and the bill, 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. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, 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. Hostettler? 

Mr. HOSTETTLER. Aye. 

92

The CLERK. Mr. Hostettler, aye. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

[No response.] 

The CLERK. Ms. Hart? 

Ms. HART. Aye. 

The CLERK. Ms. Hart, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Carter? 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mrs. Blackburn? 

[No response.] 

The CLERK. 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? 

[No response.] 

The CLERK. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. Mr. Watt? 

Mr. WATT. Present. 

The CLERK. Mr. Watt, present. Ms. Lofgren? 

[No response.] 

The CLERK. 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? 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Ms. Baldwin? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

[No response.] 

The CLERK. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

93

Chairman SENSENBRENNER. Are there Members in the chamber 

who wish to cast or change their votes? Gentleman from Arizona, 

Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Chairman SENSENBRENNER. Gentleman from Alabama, Mr. 

Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Chairman SENSENBRENNER. Gentleman from Florida, Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. 

Chairman SENSENBRENNER. Gentlewoman from Tennessee, Mrs. 

Blackburn? 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn, aye. 

Chairman SENSENBRENNER. Further Members in the chamber 

who wish to cast or change their vote? If not, the clerk will report. 

The gentleman from California, Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. 

Mr. Chairman, there are 20 ayes, 5 noes and one voting present. 

Chairman SENSENBRENNER. And the previous question is ordered. The question is on agreeing to the amendment offered by the 

gentleman from North Carolina, Mr. Watt. Those in favor will say 

aye. 

Those opposed no. 

The noes appear to have it. The noes have it, and the amendment is not agreed to. 

The question is now on agreeing to the amendment in the nature 

of a substitute offered by the—— Mr. SCOTT. Parliamentary inquiry. 

Chairman SENSENBRENNER. State your parliamentary inquiry. 

Mr. SCOTT. What was the last vote, prior to this one that we 

voted on? 

Chairman SENSENBRENNER. The previous question. 

Mr. SCOTT. On what? 

Chairman SENSENBRENNER. The amendment, the amendment in 

the nature of a substitute, and ordering the bill reported. 

Ms. JACKSON LEE. I have an amendment at the desk. 

Mr. SCOTT. What is the pending question? 

Chairman SENSENBRENNER. The pending question now is on the 

agreeing to the amendment in the nature of a substitute offered by 

the Chair. Those in favor will say aye. 

Opposed no. 

The ayes appear to have it. The ayes have it. The amendment 

in the nature of a substitute is agreed to. The question is now on 

reporting the bill——

Ms. JACKSON LEE. Mr. Chairman, I have an amendment at the 

desk. 

Chairman SENSENBRENNER. The previous question has been ordered. An amendment in the nature of a substitute has already 

been adopted. No more amendments are in order. 

The question——

Mr. WATT. Mr. Chairman, I move to strike the last word. 

94

Chairman SENSENBRENNER. The previous question has been ordered. No more debate is in order. 

The question is on ordering the bill reported favorably as amended. Those in favor will say aye. 

Those opposed no. 

A reporting quorum is present. The ayes appear to have it. 

Mr. SCOTT. rollcall. 

Chairman SENSENBRENNER. rollcall is requested. The question is 

on reporting the bill favorably as amended by the amendment in 

the nature of a substitute. 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. 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? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, 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. Ms. Hart? 

Ms. HART. Aye. 

The CLERK. Ms. Hart, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Carter? 

Mr. CARTER. Aye. 

The CLERK. Mr. Carter, aye. Mr. Feeney? 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. Mrs. Blackburn? 

Mrs. BLACKBURN. Aye. 

The CLERK. Mrs. Blackburn, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

[No response.] 

95

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? 

[No response.] 

The CLERK. 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? 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan, no. Mr. Delahunt? 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt, no. Mr. Wexler? 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler, no. Ms. Baldwin? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Are there additional Members in the 

chamber who wish to cast or change their votes? Gentleman from 

Arizona, Mr. Flake? 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Chairman SENSENBRENNER. Further Members in the chamber 

who wish to cast or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 21 ayes and 11 noes. 

Chairman SENSENBRENNER. And the motion to report favorably 

is agreed to. Without objection the Chairman is authorized to move 

to go to conference pursuant to House rules. The business before 

this Committee——

Ms. JACKSON LEE. Mr. Chairman, a parliamentary inquiry? 

Chairman SENSENBRENNER. The gentlewoman will state her parliamentary inquiry. 

Ms. JACKSON LEE. Is it the rule of this Committee for the majority to be so singularly partisan that they would deny the opposition 

the right to offer amendments? 

Chairman SENSENBRENNER. That is not a proper parliamentary 

inquiry. 

Ms. JACKSON LEE. The right to offer amendments? Shame on you 

all. It’s a disgrace. 

Chairman SENSENBRENNER. That is not a proper parliamentary 

inquiry. 

96

Ms. JACKSON LEE. Thank you, Mr. Chairman. It’s a disgrace. 

This Committee is a disgrace. 

Chairman SENSENBRENNER. Well, if the gentlewoman wishes to 

resign, she can send her resignation to the speaker. [Laughter.] 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. The business that has come before 

this Committee has been concluded, and the Committee stands adjourned. 

[Whereupon, at 10:44 a.m., the Committee was adjourned.] 

(97)

DISSENTING VIEWS

The undersigned oppose H.R. 1036, the ‘‘Protection of Lawful 

Commerce in Arms Act,’’ and strenuously object to the process by 

which it was adopted by the Committee. The maneuvers employed 

by the Majority to quell dissent of its special interest legislation are 

all too transparent and occurring with alarming frequency in this 

Committee. The partisan manner in which this bill was rushed 

through the Committee constitutes a major disservice to the American public who expect their representatives to engage in a deliberative effort when constructing legislation of such magnitude. 

H.R. 1036 was noticed for a legislative hearing in the Subcommittee on Commercial and Administrative law. The hearing 

was held on April 2, 2003, 1 day prior to the markup in the Full 

Committee. The Subcommittee process did not lend itself to a thorough consideration of the bill given that two of the three witnesses 

invited by the Majority submitted their testimony late. The testimony of one witness was submitted under an hour before the hearing began. Notwithstanding the tardiness of the testimony, the interest of the Minority in fully exploring the ramifications of the bill 

was eminently evident at the Subcommittee hearing. Both the 

Ranking Member of the Full Committee, Mr. Conyers, and the 

Ranking Member of the Subcommittee on Crime, Mr. Scott, attended and actively participated in the Subcommittee hearing. 

Moreover, at the request of the Minority, members were granted 

unanimous consent to propound additional questions in writing to 

the panel of witnesses—the answers to which will have no bearing 

on Members’s evaluation of the bill which is already scheduled for 

consideration on the Floor. 

The Full Committee markup provided even less process for Members of the Minority to exercise their right as representatives to 

participate in the drafting of comprehensive legislation that may 

affect the vested interests of many of their constituents. After one 

Democratic amendment had been offered and withdrawn, and during the pendency of only the second Democratic amendment offered 

by Mr. Watt, the Ranking Member of the Subcommittee from which 

the bill originated, the Majority cut off debate by moving the previous question on the amendment, the amendment in the nature of 

a substitute, and the bill. Mr. Watt’s amendment was based upon 

the testimony received before the Subcommittee which suggested a 

lack of nexus between the design and manufacturing of a gun that 

was criminally used to injure or kill another. The amendment 

would have immunized manufacturers from such liability, while 

permitting negligence actions against sellers, dealers, and distributors to proceed. 

Despite the substance of the amendment, the Majority—apparently angered by Mr. Watt’s insistence, as was his right, that the 

98

1Mr. Watt explained: ‘‘I would just say to the members of the committee, I had this read in 

an effort to return us to a serious deliberation about this bill, and . . . in an effort to make 

sure that you all read what I had written and what was being proposed....’’ Transcript, 

Markup of H.R. 1036, the ‘‘Protection of Lawful Commerce in Arms Act,’’ Thurs., Apr. 3, 2003 

(House of Representatives Committee on the Judiciary), at p. 21. 2 In addition to several other amendments by Mr. Watt, at least four other Democrats, including Mr. Conyers, Mr. Scott, Ms. Lofgen, Ms. Jackson Lee, had amendments at the desk waiting 

to be offered. 

amendment (which was a little over one page) be read 1—moved 

the previous question. The bill was then reported, without any objection from the Majority, even though approximately one dozen 

substantive Democratic amendments were awaiting consideration.2

The dispatch with which the Majority scheduled this bill for a 

hearing, markup, and Floor consideration lends credence to the 

conjecture that passage of H.R. 1036 is less about remedying a perceived boom of frivolous lawsuits as it is delivering a pro-gun bill 

in advance of the NRA’s late April annual convention. We object to 

the ‘‘process’’ and delineate our substantive concerns below. 

I. BACKGROUND AND SUMMARY

H.R. 1036, the ‘‘Protection of Lawful Commerce in Arms Act’’

prohibits civil liability actions from being brought or continued (the 

bill applies to pending cases) against manufacturers, distributors, 

dealers, or importers of firearms or ammunition for damages resulting from the ‘‘criminal or unlawful misuse’’ of their products by 

the injured party or others. The bill, which was introduced on February 27, 2003, and referred to the Judiciary Committee is similar 

to two bills introduced during the 107th Congress. H.R. 123, the 

‘‘Firearms Heritage Protection Act of 2001’’ was introduced by Rep. 

Bob Barr in January 2001 with 62 co-sponsors and referred to the 

Judiciary Committee. No action was taken on the bill. H.R. 2037, 

the ‘‘Protection of Lawful Commerce in Arms Act’’ was introduced 

by Rep. Cliff Stearns in May 2001 and referred to the House Energy and Commerce and Judiciary Committees. H.R. 2037 was 

marked up in both House Committees, reported out and placed on 

the Union Calendar in early October 2002. 

Days after H.R. 2037 was placed on the House calendar, the 

Washington, DC area was besieged by a sniper(s) who indiscriminately gunned down innocent victims with a high caliber rifle. In 

the aftermath of the sniper shooting, no further action was taken 

on the bill last term. H.R. 1036, like its predecessor, however, 

would eviscerate actions by survivors of victims of the Beltway 

sniper now pending against segments of the gun industry for negligent distribution of the Bushmaster rifle used in the killings. 

Over the past few years, more than thirty-four governmental entities have filed suit against gun manufacturers, distributors and 

trade associations in an attempt to bring to an end marketing and 

distribution schemes that place guns in the hands of criminals. Relying on public nuisance theories and claims of product liability violations, these various municipalities targeted the gun industry for 

displaying an utter indifference to the safety of their communities 

and cities through their faulty design and selling of guns. During 

the last term of Congress, of the thirty-four suits, eighteen had won 

favorable rulings on the legal merits of their claims; five were batVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00098 Fmt 6601 Sfmt 6601 E:\HR\OC\HR059.XXX HR059
99

3 H.R. 1036, Sec. 4. DEFINITIONS, (5) Qualified civil liability action.—(A)(i)-(v), at pp. 7–8 

(emphasis added). 

tling motions to dismiss; four had their claims dismissed; and 

seven ended without success. 

H.R. 1036, as was its predecessors, was introduced presumably 

in response to these lawsuits. The bill prohibits 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 

specific terms of the bill, only five specified causes of action would 

be permissible against protected members of the gun industry. 

They are (1) transfers where the transferor has been convicted of 

violating Section 924(h) of title 18; (2) actions alleging negligent entrustment (as defined in the bill) or negligence per se; (3) actions 

alleging knowing and willful violation of a Federal or State law relating to the sale or marketing of the product, where the violation 

was the proximate cause of the harm; (4) breach of contract or warranty claims; and (5) actions for physical injury or property damage 

directly due to the design or manufacturer of the product, when 

used as intended.3

II. SECTION-BY-SECTION ANALYSIS

Sec. 1. Short title. ‘‘Protection of Lawful Commerce in Arms Act’’. 

Sec. 2(a). Findings. Sets forth legislative findings in support of this 

title. The key findings are as follows:

(1) Citizens have a right, under the Second Amendment to the 

U.S. Constitution, to keep and bear arms. 

(2) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended seeking money damages and other relief for 

the harm caused by the misuse of firearms by third parties. 

(3) The manufacture, importation, possession, sale, and use of 

firearms and ammunition in the U.S. is heavily regulated by Federal, State and local laws. 

(4) Businesses engaged in the lawful design, marketing, distribution, manufacture, importation, or sale to the public of firearms or 

ammunition 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. 

(5) The possibility of imposing liability on an entire industry for 

harm that is the sole responsibility of 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 America’s free enterprise 

system, and constitutes an unreasonable burden on interstate and 

foreign commerce. 

100

4 18 U.S.C. § 921(a)(21)(A)-(F) defines the term ‘engaged in the business’’ as it relates to (a) 

a manufacturer of firearms; (b) a manufacturer of ammunition; (c)a dealer in firearms as defined 

in 921(a)(11)(A), i.e., ‘‘any person engaged in the business of selling firearms at wholesale or 

retail’’; (d) a dealer in firearms as defined in 921(a)(11)(B), i.e., ‘‘any person engaged in the business of repairing firearms or the making or fitting special barrels, stocks, or trigger mechanisms 

to firearms’’; (e) an importer of firearms; and (f) an importer of ammunition in identical terms 

as that provided in H.R. 1036 as it relates to a seller of ammunition. 921(a)(21) does not include 

in its definition of ‘‘engaged in the business,’’ a dealer in firearms as defined in 921(a)(11)(C), 

who is a pawnbroker. 

(6) The liability actions commenced or contemplated by governmental entities and private interest groups are based on theories 

without foundation in hundreds of years of the common law and 

American jurisprudence. The possibility that a ‘‘maverick’’ judge or 

jury would sustain these actions would constitute an expansion of 

civil liability in a manner never contemplated by the Framers of 

the Constitution. Finally, 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 U.S. Constitution. 

(b) Purposes. Outlines the purposes of the Act which include: (1) 

prohibiting causes of actions against manufacturers, distributors, 

dealers, and importers of firearms or ammunition products for 

harm caused by third parties when the product functioned as designed and intended; (2) preserving citizen access to firearms and 

ammunition for lawful purposes; (3) guaranteeing a citizen’s rights, 

privileges, and immunities under the Fourteenth Amendment to 

the U.S. Constitution; (4) preventing the use of such lawsuits to 

impose unreasonable burdens on interstate and foreign commerce; 

and (5) protecting the First Amendment rights of manufacturers, 

distributors, dealers, and importers of firearms or ammunition 

products, and trade associations to speak freely, assemble peaceably, and petition the Government for redress of their grievances. 

Sec. 3. Prohibition on Bringing of Qualified Civil Liability Actions 

in Federal or State Court. 

(a) In General. This provision prohibits any person from bringing 

a ‘‘qualified civil liability action’’ in any Federal or State court. 

(b) Dismissal of Pending Actions. This provision requires courts 

to dismiss any ‘‘qualified civil liability’’ action wherever pending on 

the date of enactment of this Act. 

Sec. 4. Definitions. 

(1) Engaged in the Business. Defines the term ‘‘engaged in the 

business’’ as that provided in section 921(a)(21) of title 18, U.S.C., 

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 principled objective of 

livelihood through the sale or distribution of ammunition.’’ 4

(2) Manufacturer. Defines ‘‘manufacturer’’ as (a) a person engaged in a business of manufacturing the product in interstate or 

foreign commerce and (b) who is licensed to engage in such business under chapter 44 of title 18, U.S.C. 

(3) Person. Defines the term ‘‘person’’ as any individual, corporation, company association, firm, partnership, society, joint stock 

company, or any other entity, including any governmental entity. 

101

5 Under this section, a seller would include a pawnbroker as defined in 921(a)(11)(C), title 18, 

U.S.C. 6 Ammunition covered by this bill as defined by 18 U.S.C. § 921(a)(17) includes ‘‘ammunition 

or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm’’ and ‘‘armor piercing ammunition.’’ Armor piercing ammunition, as defined in section 921, includes 

projectiles, projectile cores or full jacketed projectiles larger than .22 caliber which may be used 

or which are designed and intended to be used in a handgun. Section 921 further provides, however, that

‘armor piercing ammunition’ does not include shotgun shot required by Federal or State 

environmental or game regulations for hunting purposes, a frangible projectile designed 

for target shooting, a projectile which the Secretary finds is primarily intended to be 

used for sporting purposes, or any other projectile or projectile core which the Secretary 

finds is intended to be used for industrial purposes, including a charge used in an oil 

and gas well perforating device.

18 U.S.C. § 921(a)(17)(C) (emphasis added).

(4) Qualified Product. Defines a ‘‘qualified product’’ as a firearm 

(defined in Section 921(a)(3) of title 18) including any antique firearm (defined in Section 921(a)(16) of title 18), or ammunition (defined in section 921(a)(17) of title 18), or a component of either that 

has been shipped in interstate or foreign commerce. 

(5) Qualified Civil Liability Action.1 (A) IN GENERAL: Defines 

a ‘‘qualified civil liability action’’ as an action brought by any person against a manufacturer or seller of a qualified product, or trade 

association, for damages resulting from the ‘‘criminal or unlawful 

misuse of a qualified product by the person or a third party.’’ Excluded from the definition are (1) transfers where the transferor 

has been convicted of violating Section 924(h) of title 18; (2) actions 

alleging negligent entrustment or negligence per se; (3) actions alleging knowing and wilful violation of a Federal or State law relating to the sale or marketing of the product, where the violation was 

the proximate cause of the harm; (4) breach of contract or warranty 

claims; and (5) actions for physical injury or property damage directly due to the design or manufacture of the product when used 

as intended. (B) NEGLIGENT ENTRUSTMENT: Defines the term 

‘‘negligent entrustment’’ as the provision of a qualified product by 

a seller to another person when the seller knows or should have 

know that the person to whom the product was provided is likely 

to, and in fact does, use the product in a manner involving unreasonable risk of physical harm to others. 

(6) Seller. Defines a ‘‘seller’’ of a qualified product as (a) an importer (as defined in 921(a)(9), title 18 U.S.C.) licensed pursuant to 

chapter 44 of title 18 to engage, and is so engaged, in the business 

of an importer in interstate or foreign commerce; (b) a dealer (as 

defined in 921(a)(11), title 18 U.S.C.5), licensed under chapter 44 

of title 18 to engage, and is so engaged, in business as a dealer in 

interstate or foreign commerce; and (c) a person engaged in the 

business of lawfully selling ammunition (as ‘‘ammunition’’ is defined in 921(a)(17), title 18, U.S.C.6) in interstate or foreign commerce at the wholesale or retail level. 

(7) State. Defines a ‘‘state’’ as any of the several States of the 

U.S., the District of Columbia, any U.S. territory, or other possession of the U.S. and any political subdivisions thereof. 

(8) Trade Association. Defines a ‘‘trade association’’ as any association or organization, whether incorporated or not, that is not operated for profit and whose members consist of two or more manufacturers or sellers of a qualified product. 

102

7Former police officer, David Lemongello, who testified at the subcommittee hearing 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 a bulk, cash sale of 12 firearms. 8 U.S. Const. Amend II. 

III. POLICY CONCERNS

A. 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 shootings 

using guns 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.7 Under H.R. 1036, 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. 1036 would even immunize from liability gun dealers found guilty of violating most Federal gun laws 

(except 18 U.S.C. 924(h)), unless such violation was knowing and 

wilful and was the proximate cause of the harm for which relief is 

sought. 

B. 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. 1036 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 product liability actions. Under this 

bill, gun manufacturers face no liability for failing to implement 

safety devices that would prevent foreseeable injuries, provided the 

individual who possessed the gun was a child or some other person 

not permitted to possess a gun. This ‘‘unlawful use’’ under the bill 

would insulate the manufacturer from avoidable accidental injury. 

C. 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.’’ 8 Regrettably, it also disregards over sixty years of U.S. Supreme Court precedent that has 

103

9 U.S. v. Miller, 307 U.S. 174, 178 (1939). Mr. Scott, Ranking Member of the Subcommittee 

on Crime, was deprived of an opportunity to offer an amendment which would have addressed 

the fallacy of this finding. Indeed, in Miller, the Supreme Court declared 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 the individual’s right to bear arms. More specifically, the Court stated 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 ‘‘must be interpreted 

and applied with that end in view.’’ Thus, the Second Amendment does not protect individual 

ownership of guns and does not constitute a barrier to Congressional regulation of firearms. 10 Cincinnati v. Beretta, et. al., 768 N.E.2d 1136 (Oh. 2002). 11Smith v. Bryco, 33 P.3d 638 (N.M. App. 2001). 12Young v. Bryco, et.al., 765 N.E.2d 1 (Ill. App. 2002) (appeal pending). 13 Hurst v. Glock, 684 A.2d 970 (N.J. App. 1996). 14For example, a gun manufacturer may fail to include a feasible safety device, and as a result of that failure a child may unintentionally shoot another child. It is, of course, entirely foreseeable to the manufacturer that children will have access to guns. Under generally-accepted 

principles of products liability law, the manufacturer could be liable because the shooting was 

a foreseeable result of not including the safety device. Similarly, auto manufacturers are liable 

for injuries that could have been prevented by feasible safety features, even in accidents that 

involve speeding or other unlawful use of a car. However, under this bill, the gun manufacturer 

would be immune from suit because the child’s possession and use of the gun, although foreseeable to the manufacturer, would be unlawful. 

interpreted the right to bear arms to exist based upon ‘‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’’ 9

D. THE NARROW EXCEPTIONS IN H.R. 1036 WILL NOT PROTECT MOST

VICTIMS OF GUN INDUSTRY NEGLIGENCE.

H.R. 1036 would deprive gun violence victims of their legal rights 

in cases involving a wide range of industry misconduct. The bill 

generally 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.’’ This radically rewrites well-accepted principles of liability law, which generally hold 

that persons and companies may be liable for the foreseeable consequences of their wrongful acts, including the foreseeable criminal 

conduct of others. 

The New Mexico Court of Appeals recently wrote in a case involving an accidental shooting by a teenager that ‘‘[s]uppliers are 

responsible for risks arising from foreseeable uses of the product, 

including reasonably foreseeable unintended uses and misuses.’’ In 

the last 2 years alone, the Supreme Court of Ohio 10, and appeals 

courts in New Mexico 11, Illinois 12 and New Jersey 13, 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. 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 unprecedented attack on the legal rights of such victims.14

Also, a gun seller may supply criminals with the means to kill 

by irresponsibly selling 10, 25, or 100 guns to a gun trafficker, as 

was the case with the injury suffered by the Minority witness at 

the Subcommittee hearing, former Officer Lemongello. Under generally accepted legal principles, such a sale could be negligent since 

the foreseeable result is that the trafficker will sell one of the guns 

to a criminal who will use that gun in crime. In Officer 

Lemongello’s case, a West Virginia Circuit Court judge recently 

104

15McGuire and Lemongello v. Will Co.,Inc., et. al., No. 02–C–2952 (Cir. Ct. Kanawha County, 

W.Va.) (March 19, 2003). 16Mr. Scott was prepared to offer an amendment which would have eliminated this unprecedented ‘‘criminal conviction predicate,’’ requiring prosecution and conviction as a condition for 

bringing suit for civil relief. 17 Anderson v. Bryco, et al., No. 00 L 7476 (Cir. Court of Cook County, Ill.). 

held that the gun dealer, who sold 12 guns in a cash sale, under 

suspicious circumstances, could be liable under that State’s law of 

negligence and public nuisance for failing to use reasonable care in 

its sale, and that a jury could find that the subsequent criminal 

shooting was a foreseeable result of the negligent sale.15 However, 

under this bill, dealers would be immune from liability if the guns 

are used in crime. Nor will the specific narrow exceptions in the 

legislation protect the rights of most of the victims who have been 

harmed by irresponsible gun manufacturers and sellers. 

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

The first exception in H.R. 1036 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 law, by a 

party directly harmed by the conduct of which the transferee is so 

convicted.’’

• 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.’’

• This exception would only allow lawsuits against dealers 

who are convicted of selling 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/

her criminal intentions to the gun seller and is also, in fact, 

convicted of the specific crime.16 Under this exception, a 

prosecutor’s decision—even if justified—not to pursue a particular prosecution, or to accept a plea bargain to a lesser offense may operate to deny relief to one harmed as a result 

of a negligent transfer. 

• This exception would not preserve the pending case brought 

by the family of former Northwestern University basketball 

coach Ricky Byrdsong.17 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 period of a year and a half. The dealer clearly should 

have known that the trafficker did not need 72 guns for his 

own use, but intended to sell them to criminals. Since the 

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 this exception. 

105

18McGuire and Lemongello v. Will Co., Inc., No. 02–C–2952, (Cir. Court, Kanawha County, 

W.Va.) 19 E.g., Regan v. Nissan North America, Inc., 810 A.2d 255 (R.I. 2002) (Rhode Island does not 

recognize negligent entrustment theory). 20Perry v. S.N., 973 S.W.2d 301 (Tex. 1998). Texas’s definition of ‘‘negligence per se’’ is similar 

to that employed by other States.

2. 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. This exception does not preserve any cases against gun 

manufacturers, and only protects a limited class of cases against 

sellers. 

(a) 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 exception 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. 

Like the previous exception, this would still shut the courthouse door to victims of the far more common practice of 

dealers negligently selling guns to traffickers who, in turn, 

supply criminals.

• Under this exception, not only would the previously-mentioned Byrdsong case be barred, but the bill would deny relief to Minority witness, former New Jersey police officer 

Lemongello and his partner, who were shot with a handgun 

sold as part of a 12-handgun sale by a West Virginia dealer 

to a ‘‘straw buyer’’ for a gun trafficker.18 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 

were not the shooters. 

• Because negligent entrustment is not even recognized in 

every State, in some States this ‘‘exception’’ would have absolutely no effect in preserving claims of those harmed by 

the foreseeable conduct of those to whom guns are negligently sold.19

(b) Negligence Per Se 

• Negligence per se is ‘‘the unexcused 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.’’ 20 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 ‘‘approVerDate Jan 31 2003 23:39 Apr 07, 2003 Jkt 019006 PO 00000 Frm 00105 Fmt 6601 Sfmt 6601 E:\HR\OC\HR059.XXX HR059
106

21Gillingham v. Stephenson, 551 S.E.2d 633 (W.Va. 2001). Negligence per se also is not an 

accepted basis for liability in a number of other States, including Arkansas, North Dakota and 

Maine. 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). 22See Wash. Rev. Code Ann. § 5.40.050 (1986), abrogating negligence per se. 23Johnson v. Bull’s Eye Shooter Supply, No. 03–2–03932–8 (Sup.Ct.Wa.). 

priate’’ to deem violation of the particular statute as per se 

proof of negligence. 

• Under this exception, gun sellers whose negligence causes injury could not be liable unless, at a minimum, they also violated a law or regulation that the court found an ‘‘appropriate basis’’ for a negligence per se claim. This exception 

would not preserve the Illinois case discussed above, Anderson v. Bryco, because even though the dealer was convicted 

of violating gun laws in his sale of some guns to the trafficker, he was not convicted of illegally selling the gun used 

to shoot Ricky Byrdsong. The West Virginia Lemongello case 

would not be protected by the exception because the doctrine 

of negligence per se is not recognized in West Virginia.21

Similarly, since negligence per se also is not recognized in 

Washington State 22 this exception would 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.’’ 23 Moreover, it is not yet clear that a statutory 

violation was involved in the ‘‘disappearance’’ of the Bushmaster assault rifle used to shoot sixteen people. It may 

have been a case of negligent store security or storage practices. 

3. KNOWING AND WILLFUL VIOLATIONS OF LAW

The bill also exempts cases against gun sellers and manufacturers ‘‘in which a manufacturer or seller of a qualified product knowingly and willfully violated a State or Federal statute applicable to 

the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.’’

• This exception is an even more limited version of negligence 

per se. 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 exception, 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 that is generally not required to be met in civil cases. 

4. BREACH OF CONTRACT OR WARRANTY

The bill has an 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 would merely allow gun purchasers to sue a dealer if, 

107

24For 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. 25Dix v. Beretta U.S.A., No. 750681–9 (Sup. Court of Alameda County, CA). 

for example, the dealer did not provide the gun for which the 

purchaser paid, or the dealer violated the 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 exception would only protect gun purchasers, and would 

provide no remedies for other persons injured by guns. Other 

victims of defectively designed or negligently sold guns 

would not be allowed to pursue their rights in court under 

this exception. Even as to gun purchasers, their claims 

would be limited only to what they were entitled under the 

scope of the contract or warranty.24

5. DEFECTIVE DESIGN OR MANUFACTURE WHERE GUN USED AS

INTENDED

The bill protects 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 exception allows cases 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 [the 

manufacturer] intended,’’ but nevertheless malfunctioned. 

However, the exception would not apply to most defective design cases actually brought under traditional products liability theories. In most such cases the use of the gun, while 

clearly foreseeable to the manufacturer, was not ‘‘as intended.’’ This provision alters generally-accepted principles 

of products liability law under which a manufacturer must 

implement feasible safety features that would prevent injury 

caused by foreseeable use or misuse—even if that use is not 

‘‘intended.’’ For example, auto makers are liable for not making cars ‘‘crashworthy,’’ regardless of whether a particular 

accident may have involved a use of the car—excessive speed 

or other driver error—not ‘‘intended’’ by the manufacturer.

• Under this exception the parents of Kenzo Dix, whose son 

was unintentionally shot and killed by a young friend who 

thought the gun was unloaded, would be barred from pursuing their case against the gun manufacturer.25 Even 

though the manufacturer’s failure to include a feasible safety 

device would have alerted Kenzo’s friend that the gun was 

loaded, and would have prevented him from firing the gun—

and the friend’s ‘‘misuse’’ was common and predictable—the 

gun was not ‘‘used as intended.’’ Ironically, however, similar 

108

26 Article I, Section 8 of the Constitution provides, inter alia, ‘‘Congress shall have Power . . . 

to regulate Commerce with foreign Nations and among the several States....’’ U.S. Const. art 

I, § 8, cl. 3. 

27 According to the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995), one of the 

problems with the school gun ban was that it contained ‘‘no express jurisdictional element which 

might limit its reach to a discrete set of firearms possessions that additionally have an explicit 

connection with or effect on interstate commerce.’’ 28The Court in Lopez observed that there were certain traditional areas of state law, such 

as criminal law and education, which should be off limits to Federal intervention. The concurrence by Justices Kennedy and O’Connor also reasoned that the Federal Government should 

avoid involving itself in areas which fall within the ‘‘traditional concern of the states,’’ noting 

that over 40 States had adopted laws outlawing the possession of firearms on or near school 

grounds. 29 U.S. Const. amend. V. 30See Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment due process found to incorporate equal protection guarantees in case involving public school desegregation by the Federal 

Government in the District of Columbia). 31 U.S. Const. amend. VII. 

cases involving ‘‘unintended’’ uses, with less tragic consequences, would be allowed against BB gun makers. 

E. H.R. 1036 RAISES CONSTITUTIONAL AND FEDERALISM CONCERNS.

Among the many problems with the legislation, we are also concerned that the bill may be unconstitutional under the Commerce 

Clause, the Fifth Amendment, and the Seventh Amendment. 

First, the bill as drafted invites legal challenges to Congressional 

authority to legislate in this area, given the Supreme Court’s recent Commerce Clause jurisprudence. There is a genuine issue as 

to whether H.R. 1036 is a permissible exercise of Congress’ power 

to regulate interstate commerce,26 given that it contains no interstate commerce jurisdictional requirement, and merely makes a 

flat and unsubstantiated assertion that all of the activities it regulates affect interstate commerce.27 The Supreme Court repeatedly 

has frowned upon Federal intervention into areas like liability law 

that have been traditionally reserved to the states.28

The bill also invites challenges that it violates the Fifth Amendment, which provides that no person shall be ‘‘deprived of life, liberty, or property without due process of law,’’ 29 a proscription 

which has been held to include an equal protection component.30

Plaintiffs will no doubt argue that the law does not provide a legislative quid pro quo and, as such, violates the Fifth Amendment. In 

exchange for depriving plaintiffs of their common law rights, the 

bill does not provide any offsetting legal benefits, at least to the 

parties directly harmed by the loss of their common law rights. 

Also, by applying to pending lawsuits, the bill invites the constitutional challenge that the bill constitutes an unlawful taking in 

violation of the Fifth Amendment. This Committee considers various liability proposals, and it is highly unusual to impact pending 

lawsuits. 

Finally, the bill may violate the Seventh Amendment, which provides, ‘‘[i]n suits at common law, where the value in controversy 

shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined 

in any Court of the United States, than according to the rules of 

the common law.’’ 31 Because the bill eliminates the right of a jury 

to determine liability issues, the legislation arguably deprives a 

plaintiff of the right to jury. 

109

CONCLUSION

Supporters of H.R. 1036, the gun lobby-backed immunity bill 

that would shield irresponsible gun manufacturers, sellers, dealers, 

distributors and importers from liability, 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 not a responsible Congress that does so through the 

spectacle of a mock hearing and truncated markup in which voices 

of dissent were suppressed.

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

JERROLD NADLER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

MARTIN T. MEEHAN. 

WILLIAM D. DELAHUNT. 

ROBERT WEXLER. 

TAMMY BALDWIN. ANTHONY D. WEINER. LINDA T. SA ́ NCHEZ.

Æ