109TH CONGRESS

1ST SESSION S. 397

AN ACT

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

importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their

products by others.

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

3 SECTION 1. SHORT TITLE.

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

5 Commerce in Arms Act’’.
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1 SEC. 2. FINDINGS; PURPOSES.

2 (a) FINDINGS.—Congress finds the following:

3 (1) The Second Amendment to the United

4 States Constitution provides that the right of the

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

6 (2) The Second Amendment to the United

7 States Constitution protects the rights of individ8 uals, including those who are not members of a mili9 tia or engaged in military service or training, to

10 keep and bear arms.

11 (3) Lawsuits have been commenced against

12 manufacturers, distributors, dealers, and importers

13 of firearms that operate as designed and intended,

14 which seek money damages and other relief for the

15 harm caused by the misuse of firearms by third par16 ties, including criminals.

17 (4) The manufacture, importation, possession,

18 sale, and use of firearms and ammunition in the

19 United States are heavily regulated by Federal,

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

21 Gun Control Act of 1968, the National Firearms

22 Act, and the Arms Export Control Act.

23 (5) Businesses in the United States that are en24 gaged in interstate and foreign commerce through

25 the lawful design, manufacture, marketing, distribu26 tion, importation, or sale to the public of firearms or
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1 ammunition products that have been shipped or

2 transported in interstate or foreign commerce are

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

4 by those who criminally or unlawfully misuse firearm

5 products or ammunition products that function as

6 designed and intended.

7 (6) The possibility of imposing liability on an

8 entire industry for harm that is solely caused by oth9 ers is an abuse of the legal system, erodes public

10 confidence in our Nation’s laws, threatens the dimi11 nution of a basic constitutional right and civil lib12 erty, invites the disassembly and destabilization of

13 other industries and economic sectors lawfully com14 peting in the free enterprise system of the United

15 States, and constitutes an unreasonable burden on

16 interstate and foreign commerce of the United

17 States.

18 (7) The liability actions commenced or con19 templated by the Federal Government, States, mu20 nicipalities, and private interest groups and others

21 are based on theories without foundation in hun22 dreds of years of the common law and jurisprudence

23 of the United States and do not represent a bona

24 fide expansion of the common law. The possible sus25 taining of these actions by a maverick judicial officer
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1 or petit jury would expand civil liability in a manner

2 never contemplated by the framers of the Constitu3 tion, by Congress, or by the legislatures of the sev4 eral States. Such an expansion of liability would con5 stitute a deprivation of the rights, privileges, and

6 immunities guaranteed to a citizen of the United

7 States under the Fourteenth Amendment to the

8 United States Constitution.

9 (8) The liability actions commenced or con10 templated by the Federal Government, States, mu11 nicipalities, private interest groups and others at12 tempt to use the judicial branch to circumvent the

13 Legislative branch of government to regulate inter14 state and foreign commerce through judgments and

15 judicial decrees thereby threatening the Separation

16 of Powers doctrine and weakening and undermining

17 important principles of federalism, State sovereignty

18 and comity between the sister States.

19 (b) PURPOSES.—The purposes of this Act are as fol20 lows:

21 (1) To prohibit causes of action against manu22 facturers, distributors, dealers, and importers of

23 firearms or ammunition products, and their trade

24 associations, for the harm solely caused by the crimi25 nal or unlawful misuse of firearm products or am-
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1 munition products by others when the product func2 tioned as designed and intended.

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

4 firearms and ammunition for all lawful purposes, in5 cluding hunting, self-defense, collecting, and com6 petitive or recreational shooting.

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

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

9 Fourteenth Amendment to the United States Con10 stitution, pursuant to section 5 of that Amendment.

11 (4) To prevent the use of such lawsuits to im12 pose unreasonable burdens on interstate and foreign

13 commerce.

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

15 Amendment to the Constitution, of manufacturers,

16 distributors, dealers, and importers of firearms or

17 ammunition products, and trade associations, to

18 speak freely, to assemble peaceably, and to petition

19 the Government for a redress of their grievances.

20 (6) To preserve and protect the Separation of

21 Powers doctrine and important principles of fed22 eralism, State sovereignty and comity between sister

23 States.
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1 (7) To exercise congressional power under art.

2 IV, section 1 (the Full Faith and Credit Clause) of

3 the United States Constitution.

4 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL

5 LIABILITY ACTIONS IN FEDERAL OR STATE

6 COURT.

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

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

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

10 civil liability action that is pending on the date of enact11 ment of this Act shall be immediately dismissed by the

12 court in which the action was brought or is currently pend13 ing.

14 SEC. 4. DEFINITIONS.

15 In this Act:

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

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

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

19 States Code, and, as applied to a seller of ammuni20 tion, means a person who devotes, time, attention,

21 and labor to the sale of ammunition as a regular

22 course of trade or business with the principal objec23 tive of livelihood and profit through the sale or dis24 tribution of ammunition.
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1 (2) MANUFACTURER.—The term ‘‘manufac2 turer’’ means, with respect to a qualified product, a

3 person who is engaged in the business of manufac4 turing the product in interstate or foreign commerce

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

6 manufacturer under chapter 44 of title 18, United

7 States Code.

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

9 individual, corporation, company, association, firm,

10 partnership, society, joint stock company, or any

11 other entity, including any governmental entity.

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

13 product’’ means a firearm (as defined in subpara14 graph (A) or (B) of section 921(a)(3) of title 18,

15 United States Code), including any antique firearm

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

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

18 such title), or a component part of a firearm or am19 munition, that has been shipped or transported in

20 interstate or foreign commerce.

21 (5) QUALIFIED CIVIL LIABILITY ACTION.—

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

23 civil liability action’’ means a civil action or pro24 ceeding or an administrative proceeding

25 brought by any person against a manufacturer
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1 or seller of a qualified product, or a trade asso2 ciation, for damages, punitive damages, injunc3 tive or declaratory relief, abatement, restitution,

4 fines, or penalties, or other relief’’ resulting

5 from the criminal or unlawful misuse of a quali6 fied product by the person or a third party, but

7 shall not include—

8 (i) an action brought against a trans9 feror convicted under section 924(h) of

10 title 18, United States Code, or a com11 parable or identical State felony law, by a

12 party directly harmed by the conduct of

13 which the transferee is so convicted;

14 (ii) an action brought against a seller

15 for negligent entrustment or negligence per

16 se;

17 (iii) an action in which a manufac18 turer or seller of a qualified product know19 ingly violated a State or Federal statute

20 applicable to the sale or marketing of the

21 product, and the violation was a proximate

22 cause of the harm for which relief is

23 sought, including—

24 (I) any case in which the manu25 facturer or seller knowingly made any
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1 false entry in, or failed to make ap2 propriate entry in, any record re3 quired to be kept under Federal or

4 State law with respect to the qualified

5 product, or aided, abetted, or con6 spired with any person in making any

7 false or fictitious oral or written state8 ment with respect to any fact material

9 to the lawfulness of the sale or other

10 disposition of a qualified product; or

11 (II) any case in which the manu12 facturer or seller aided, abetted, or

13 conspired with any other person to

14 sell or otherwise dispose of a qualified

15 product, knowing, or having reason16 able cause to believe, that the actual

17 buyer of the qualified product was

18 prohibited from possessing or receiv19 ing a firearm or ammunition under

20 subsection (g) or (n) of section 922 of

21 title 18, United States Code;

22 (iv) an action for breach of contract

23 or warranty in connection with the pur24 chase of the product;
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1 (v) an action for death, physical inju2 ries or property damage resulting directly

3 from a defect in design or manufacture of

4 the product, when used as intended or in

5 a reasonably foreseeable manner, except

6 that where the discharge of the product

7 was caused by a volitional act that con8 stituted a criminal offense then such act

9 shall be considered the sole proximate

10 cause of any resulting death, personal inju11 ries or property damage; or

12 (vi) and action or proceeding com13 menced by the Attorney General to enforce

14 the provisions of chapter 44 of title 18 or

15 chapter 53 of title 26, United States Code.

16 (B) NEGLIGENT ENTRUSTMENT.—As used

17 in subparagraph (A)(ii), the term ‘negligent en18 trustment’ means the supplying of a qualified

19 product by a seller for use by another person

20 when the seller knows, or reasonably should

21 know, the person to whom the product is sup22 plied is likely to, and does, use the product in

23 a manner involving unreasonable risk of phys24 ical injury to the person or others.
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1 (C) RULE OF CONSTRUCTION.—The excep2 tions enumerated under clauses (i) through (v)

3 of subparagraph (A) shall be construed so as

4 not to be in conflict, and no provision of this

5 Act shall be construed to create a public or pri6 vate cause of action or remedy.

7 (D) MINOR CHILD EXCEPTION.—Nothing

8 in this Act shall be construed to limit the right

9 of a person under 17 years of age to recover

10 damages authorized under Federal or State law

11 in a civil action that meets 1 of the require12 ments under clauses (i) through (v) of subpara13 graph (A).

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
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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)(A) of title 18, United States Code)

8 in interstate or foreign commerce at the whole9 sale or retail level.

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

11 the several States of the United States, the District

12 of Columbia, the Commonwealth of Puerto Rico, the

13 Virgin Islands, Guam, American Samoa, and the

14 Commonwealth of the Northern Mariana Islands,

15 and any other territory or possession of the United

16 States, and any political subdivision of any such

17 place.

18 (8) TRADE ASSOCIATION.—The term ‘‘trade as19 sociation’’ means—

20 (A) any corporation, unincorporated asso21 ciation, federation, business league, professional

22 or business organization not organized or oper23 ated for profit and no part of the net earnings

24 of which inures to the benefit of any private

25 shareholder or individual;
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1 (B) that is an organization described in

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

3 of 1986 and exempt from tax under section

4 501(a) of such Code; and

5 (C) 2 or more members of which are man6 ufacturers or sellers of a qualified product.

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

8 misuse’’ means conduct that violates a statute, ordi9 nance, or regulation as it relates to the use of a

10 qualified product.

11 SEC. 5. CHILD SAFETY LOCKS.

12 (a) SHORT TITLE.—This section may be cited as the

13 ‘‘Child Safety Lock Act of 2005’’.

14 (b) PURPOSES.—The purposes of this section are—

15 (1) to promote the safe storage and use of

16 handguns by consumers;

17 (2) to prevent unauthorized persons from gain18 ing access to or use of a handgun, including children

19 who may not be in possession of a handgun; and

20 (3) to avoid hindering industry from supplying

21 firearms to law abiding citizens for all lawful pur22 poses, including hunting, self-defense, collecting, and

23 competitive or recreational shooting.

24 (c) FIREARMS SAFETY.—
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1 (1) MANDATORY TRANSFER OF SECURE GUN

2 STORAGE OR SAFETY DEVICE.—Section 922 of title

3 18, United States Code, is amended by inserting at

4 the end the following:

5 ‘‘(z) SECURE GUN STORAGE OR SAFETY DEVICE.—

6 ‘‘(1) IN GENERAL.—Except as provided under

7 paragraph (2), it shall be unlawful for any licensed

8 importer, licensed manufacturer, or licensed dealer

9 to sell, deliver, or transfer any handgun to any per10 son other than any person licensed under this chap11 ter, unless the transferee is provided with a secure

12 gun storage or safety device (as defined in section

13 921(a)(34)) for that handgun.

14 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not

15 apply to—

16 ‘‘(A)(i) the manufacture for, transfer to, or

17 possession by, the United States, a department

18 or agency of the United States, a State, or a

19 department, agency, or political subdivision of a

20 State, of a handgun; or

21 ‘‘(ii) the transfer to, or possession by, a

22 law enforcement officer employed by an entity

23 referred to in clause (i) of a handgun for law

24 enforcement purposes (whether on or off duty);

25 or
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1 ‘‘(B) the transfer to, or possession by, a

2 rail police officer employed by a rail carrier and

3 certified or commissioned as a police officer

4 under the laws of a State of a handgun for pur5 poses of law enforcement (whether on or off

6 duty);

7 ‘‘(C) the transfer to any person of a hand8 gun listed as a curio or relic by the Secretary

9 pursuant to section 921(a)(13); or

10 ‘‘(D) the transfer to any person of a hand11 gun for which a secure gun storage or safety

12 device is temporarily unavailable for the reasons

13 described in the exceptions stated in section

14 923(e), if the licensed manufacturer, licensed

15 importer, or licensed dealer delivers to the

16 transferee within 10 calendar days from the

17 date of the delivery of the handgun to the

18 transferee a secure gun storage or safety device

19 for the handgun.

20 ‘‘(3) LIABILITY FOR USE.—

21 ‘‘(A) IN GENERAL.—Notwithstanding any

22 other provision of law, a person who has lawful

23 possession and control of a handgun, and who

24 uses a secure gun storage or safety device with
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1 the handgun, shall be entitled to immunity from

2 a qualified civil liability action.

3 ‘‘(B) PROSPECTIVE ACTIONS.—A qualified

4 civil liability action may not be brought in any

5 Federal or State court.

6 ‘‘(C) DEFINED TERM.—As used in this

7 paragraph, the term ‘qualified civil liability

8 action’—

9 ‘‘(i) means a civil action brought by

10 any person against a person described in

11 subparagraph (A) for damages resulting

12 from the criminal or unlawful misuse of

13 the handgun by a third party, if—

14 ‘‘(I) the handgun was accessed

15 by another person who did not have

16 the permission or authorization of the

17 person having lawful possession and

18 control of the handgun to have access

19 to it; and

20 ‘‘(II) at the time access was

21 gained by the person not so author22 ized, the handgun had been made in23 operable by use of a secure gun stor24 age or safety device; and
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1 ‘‘(ii) shall not include an action

2 brought against the person having lawful

3 possession and control of the handgun for

4 negligent entrustment or negligence per

5 se.’’.

6 (2) CIVIL PENALTIES.—Section 924 of title 18,

7 United States Code, is amended—

8 (A) in subsection (a)(1), by striking ‘‘or

9 (f)’’ and inserting ‘‘(f), or (p)’’; and

10 (B) by adding at the end the following:

11 ‘‘(p) PENALTIES RELATING TO SECURE GUN STOR12 AGE OR SAFETY DEVICE.—

13 ‘‘(1) IN GENERAL.—

14 ‘‘(A) SUSPENSION OR REVOCATION OF LI15 CENSE; CIVIL PENALTIES.—With respect to

16 each violation of section 922(z)(1) by a licensed

17 manufacturer, licensed importer, or licensed

18 dealer, the Secretary may, after notice and op19 portunity for hearing—

20 ‘‘(i) suspend for not more than 6

21 months, or revoke, the license issued to the

22 licensee under this chapter that was used

23 to conduct the firearms transfer; or
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1 ‘‘(ii) subject the licensee to a civil

2 penalty in an amount equal to not more

3 than $2,500.

4 ‘‘(B) REVIEW.—An action of the Secretary

5 under this paragraph may be reviewed only as

6 provided under section 923(f).

7 ‘‘(2) ADMINISTRATIVE REMEDIES.—The sus8 pension or revocation of a license or the imposition

9 of a civil penalty under paragraph (1) shall not pre10 clude any administrative remedy that is otherwise

11 available to the Secretary.’’.

12 (3) LIABILITY; EVIDENCE.—

13 (A) LIABILITY.—Nothing in this section

14 shall be construed to—

15 (i) create a cause of action against

16 any Federal firearms licensee or any other

17 person for any civil liability; or

18 (ii) establish any standard of care.

19 (B) EVIDENCE.—Notwithstanding any

20 other provision of law, evidence regarding com21 pliance or noncompliance with the amendments

22 made by this section shall not be admissible as

23 evidence in any proceeding of any court, agen24 cy, board, or other entity, except with respect to

25 an action relating to section 922(z) of title 18,
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1 United States Code, as added by this sub2 section.

3 (C) RULE OF CONSTRUCTION.—Nothing in

4 this paragraph shall be construed to bar a gov5 ernmental action to impose a penalty under sec6 tion 924(p) of title 18, United States Code, for

7 a failure to comply with section 922(z) of that

8 title.

9 (d) EFFECTIVE DATE.—This section and the amend10 ments made by this section shall take effect 180 days after

11 the date of enactment of this Act.

12 SEC. 6. ARMOR PIERCING AMMUNITION.

13 (a) UNLAWFUL ACTS.—Section 922(a) of title 18,

14 United States Code, is amended by striking paragraphs

15 (7) and (8) and inserting the following:

16 ‘‘(7) for any person to manufacture or import

17 armor piercing ammunition, unless—

18 ‘‘(A) the manufacture of such ammunition

19 is for the use of the United States, any depart20 ment or agency of the United States, any State,

21 or any department, agency, or political subdivi22 sion of a State;

23 ‘‘(B) the manufacture of such ammunition

24 is for the purpose of exportation; or
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1 ‘‘(C) the manufacture or importation of

2 such ammunition is for the purpose of testing

3 or experimentation and has been authorized by

4 the Attorney General;

5 ‘‘(8) for any manufacturer or importer to sell or

6 deliver armor piercing ammunition, unless such sale

7 or delivery—

8 ‘‘(A) is for the use of the United States,

9 any department or agency of the United States,

10 any State, or any department, agency, or polit11 ical subdivision of a State;

12 ‘‘(B) is for the purpose of exportation; or

13 ‘‘(C) is for the purpose of testing or ex14 perimentation and has been authorized by the

15 Attorney General;’’.

16 (b) PENALTIES.—Section 924(c) of title 18, United

17 States Code, is amended by adding at the end the fol18 lowing:

19 ‘‘(5) Except to the extent that a greater minimum

20 sentence is otherwise provided under this subsection, or

21 by any other provision of law, any person who, during and

22 in relation to any crime of violence or drug trafficking

23 crime (including a crime of violence or drug trafficking

24 crime that provides for an enhanced punishment if com25 mitted by the use of a deadly or dangerous weapon or de-
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1 vice) for which the person may be prosecuted in a court

2 of the United States, uses or carries armor piercing am3 munition, or who, in furtherance of any such crime, pos4 sesses armor piercing ammunition, shall, in addition to the

5 punishment provided for such crime of violence or drug

6 trafficking crime or conviction under this section—

7 ‘‘(A) be sentenced to a term of imprisonment of

8 not less than 15 years; and

9 ‘‘(B) if death results from the use of such

10 ammunition—

11 ‘‘(i) if the killing is murder (as defined in

12 section 1111), be punished by death or sen13 tenced to a term of imprisonment for any term

14 of years or for life; and

15 ‘‘(ii) if the killing is manslaughter (as de16 fined in section 1112), be punished as provided

17 in section 1112.’’.

18 (c) STUDY AND REPORT.—

19 (1) STUDY.—The Attorney General shall con20 duct a study to determine whether a uniform stand21 ard for the testing of projectiles against Body Armor

22 is feasible.

23 (2) ISSUES TO BE STUDIED.—The study con24 ducted under paragraph (1) shall include—
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1 (A) variations in performance that are re2 lated to the length of the barrel of the handgun

3 or center-fire rifle from which the projectile is

4 fired; and

5 (B) the amount of powder used to propel

6 the projectile.

7 (3) REPORT.—Not later than 2 years after the

8 date of enactment of this Act, the Attorney General

9 shall submit a report containing the results of the

10 study conducted under this subsection to—

11 (A) the chairman and ranking member of

12 the Committee on the Judiciary of the Senate;

13 and

14 (B) the chairman and ranking member of

15 the Committee on the Judiciary of the House of

16 Representatives.

Passed the Senate July 29, 2005.

Attest:

Secretary.
109TH CONGRESS

1ST SESSION S. 397

AN ACT

To prohibit civil liability actions from being brought

from the misuse of their products by others.for damages, injunctive or other relief resultingdealers, or importers of firearms or ammunitionor continued against manufacturers, distributors,