II

106TH CONGRESS

1ST SESSION S. 954

To amend title 18, United States Code, to protect citizens’ rights under

the Second Amendment to obtain firearms for legal use, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

MAY 4, 1999

Mr. SMITH of New Hampshire introduced the following bill; which was read

twice and referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to protect citizens’

rights under the Second Amendment to obtain firearms

for legal use, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Second Amendment

5 Preservation Act of 1999’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) a number of State and local governments

9 have commenced civil actions, or are considering
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1 commencing civil actions, against manufacturers,

2 importers, and dealers of firearms based on the un3 lawful use of the firearms by a purchaser or other

4 person;

5 (2) in at least some cases, the intent in bring6 ing the action is to subject manufacturers, import7 ers, and dealers to legal costs that are so onerous

8 that the manufacturers, importers, and dealers may

9 not be able to defend themselves, or indeed be able

10 to remain in business;

11 (3) a majority of manufacturers, importers, and

12 dealers of firearms are small, privately owned busi13 nesses that cannot afford to bear the legal costs of

14 defending themselves in a large number of judicial

15 forums;

16 (4) compared to most manufacturers, import17 ers, and dealers of firearms, States and local govern18 ments are large and relatively wealthy entities that

19 are able to spend large amounts of taxpayers’ dollars

20 on a war of attrition with small businesses;

21 (5) fairness requires that—

22 (A) a unit of government that undertakes

23 an unsuccessful ‘‘fishing expedition’’ against a

24 firearm manufacturer, importer, or dealer bear
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1 the cost of defending against its frivolous and

2 unwarranted civil action; and

3 (B) taxpayers not be required to pay mil4 lions of dollars to wealthy attorneys, out of

5 awards that are intended, at least in part, to

6 benefit the victims of crime;

7 (6) the Second Amendment to the Constitution

8 requires that Congress respond to actions that are

9 intended to, and that would have the effect of, nul10 lifying that provision of the Bill of Rights;

11 (7) Congress has power under the Second

12 Amendment and under the Commerce Clause to take

13 appropriate action to protect the right of citizens to

14 obtain and own firearms; and

15 (8) one appropriate action that Congress may

16 take is to provide protection from excessive and un17 warranted legal fees.

18 SEC. 3. RULES GOVERNING ACTIONS BROUGHT TO CUR19 TAIL THE SALE OR AVAILABILITY OF FIRE20 ARMS FOR LEGAL PURPOSES.

21 (a) IN GENERAL.—Chapter 44 of title 18, United

22 States Code, is amended by adding at the end the fol23 lowing:
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1 ‘‘§ 926B. Rules governing actions brought to curtail

2 the sale or availability of firearms for

3 legal purposes

4 ‘‘(a) DEFINITIONS.—In this section, the term ‘action

5 brought to curtail the sale or availability of firearms for

6 legal purposes’ means a civil action brought in Federal

7 or State court that—

8 ‘‘(1) has as a defendant a firearms manufac9 turer, importer, or dealer in firearms;

10 ‘‘(2) expressly or by implication requests actual

11 damages, punitive damages, or any other form of

12 damages in excess of the lesser of—

13 ‘‘(A) $1,000,000; or

14 ‘‘(B) 50 percent of the net assets of any

15 such defendant; and

16 ‘‘(3) seeks, in whole or in part, to hold a fire17 arms manufacturer, importer, or dealer liable for

18 damages caused by the unlawful or tortious use of

19 a firearm by a person not employed by or affiliated

20 with the manufacturer, dealer, or importer.

21 ‘‘(b) LIMITATION ON ATTORNEY’S FEES AWARDED

22 TO PLAINTIFF.—In a civil action brought to curtail the

23 sale or availability of firearms for legal purposes, notwith24 standing any other provision of law or any agreement be25 tween any persons to the contrary, amounts paid in plain-
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1 tiff’s attorney’s fees in connection with the settlement or

2 adjudication of the action shall not exceed the lesser of—

3 ‘‘(1) an amount equal to $150 per hour for

4 each hour spent productively, plus actual expenses

5 incurred by the attorney in connection with the ac6 tion; or

7 ‘‘(2) an amount equal to 10 percent of the

8 amount that the plaintiff receives under the action.

9 ‘‘(c) ATTORNEY’S FEES FOR THE DEFENDANT.—In

10 a civil action brought to curtail the sale or availability of

11 firearms for legal purposes, if the court finds that the de12 fendant is not wholly or primarily liable for the damages

13 sought, the court shall require the plaintiff to reimburse

14 the defendant for reasonable attorney’s fees and court

15 costs, as determined by the court, incurred in litigating

16 the action, unless the court finds that special cir17 cumstances make such a reimbursement unjust.

18 ‘‘(d) POWER OF CONGRESS.—If any court renders a

19 decision in an action brought to curtail the sale or avail20 ability of firearms for legal purposes or in any other pro21 ceeding that the Constitution does not confer on Congress

22 the power to enact this section, the decision shall be di23 rectly appealable as of right to the Supreme Court.’’.
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1 (b) CONFORMING AMENDMENT.—The analysis for

2 chapter 44 of title 18 is amended by inserting after the

3 item relating to section 926A the following:

‘‘926B. Rules governing actions brought to curtail the sale or availability of firearms for legal purposes.’’.

4 (c) EFFECTIVE DATE.—The amendment made by

5 subsection (a)—

6 (1) takes effect on the date of enactment of this

7 Act; and

8 (2) applies to any action pending or on appeal

9 on that date or brought after that date.

Æ