II 

Calendar No. 15 

109TH CONGRESS 

1ST SESSION S. 397 

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. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 16, 2005 

Mr. CRAIG (for himself, Mr. BAUCUS, Mr. ALEXANDER, Mr. BUNNING, Mr. 

BURNS, Mr. CHAMBLISS, Mr. COBURN, Ms. COLLINS, Mr. CORNYN, Mr. 

CRAPO, Mr. DOMENICI, Mr. ENSIGN, Mr. ENZI, Mrs. HUTCHISON, Mr. 

INHOFE, Mr. ISAKSON, Mr. JOHNSON, Mr. KYL, Mrs. LINCOLN, Ms. 

MURKOWSKI, Mr. NELSON of Nebraska, Mr. SANTORUM, Mr. SESSIONS, 

Ms. SNOWE, Mr. STEVENS, Mr. THOMAS, Mr. THUNE, Mr. SUNUNU, Mr. 

ALLEN, Mr. VITTER, and Ms. LANDRIEU) introduced the following bill; 

which was read the first time 

FEBRUARY 17, 2005 

Read the second time and placed on the calendar 

A BILL 

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. 
2 

•S 397 PCS

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

3 SECTION 1. SHORT TITLE. 

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

5 Commerce in Arms Act’’. 

6 SEC. 2. FINDINGS; PURPOSES. 

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

8 (1) The Second Amendment to the United 

9 States Constitution provides that the right of the 

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

11 (2) The Second Amendment to the United 

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

15 keep and bear arms. 

16 (3) Lawsuits have been commenced against 

17 manufacturers, distributors, dealers, and importers 

18 of firearms that operate as designed and intended, 

19 which seek money damages and other relief for the 

20 harm caused by the misuse of firearms by third par21 ties, including criminals. 

22 (4) The manufacture, importation, possession, 

23 sale, and use of firearms and ammunition in the 

24 United States are heavily regulated by Federal, 

25 State, and local laws. Such Federal laws include the 
3 

•S 397 PCS

1 Gun Control Act of 1968, the National Firearms 

2 Act, and the Arms Export Control Act. 

3 (5) 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 products that have been shipped or 

8 transported in interstate or foreign commerce are 

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

10 by those who criminally or unlawfully misuse firearm 

11 products or ammunition products that function as 

12 designed and intended. 

13 (6) 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 (7) The liability actions commenced or con25 templated by the Federal Government, States, mu-
4 

•S 397 PCS

1 nicipalities, and private interest groups and others 

2 are based on theories without foundation in hun3 dreds of years of the common law and jurisprudence 

4 of the United States and do not represent a bona 

5 fide expansion of the common law. The possible sus6 taining of these actions by a maverick judicial officer 

7 or petit jury would expand civil liability in a manner 

8 never contemplated by the framers of the Constitu9 tion, by Congress, or by the legislatures of the sev10 eral 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 (8) The liability actions commenced or con16 templated by the Federal Government, States, mu17 nicipalities, private interest groups and others at18 tempt to use the judicial branch to circumvent the 

19 Legislative branch of government to regulate inter20 state and foreign commerce through judgments and 

21 judicial decrees thereby threatening the Separation 

22 of Powers doctrine and weakening and undermining 

23 important principles of federalism, State sovereignty 

24 and comity between the sister States. 
5 

•S 397 PCS

1 (b) PURPOSES.—The purposes of this Act are as fol2 lows: 

3 (1) To prohibit causes of action against manu4 facturers, distributors, dealers, and importers of 

5 firearms or ammunition products, and their trade 

6 associations, for the harm solely caused by the crimi7 nal or unlawful misuse of firearm products or am8 munition products by others when the product func9 tioned as designed and intended. 

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

11 firearms and ammunition for all lawful purposes, in12 cluding hunting, self-defense, collecting, and com13 petitive or recreational shooting. 

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

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

16 Fourteenth Amendment to the United States Con17 stitution, pursuant to section 5 of that Amendment. 

18 (4) To prevent the use of such lawsuits to im19 pose unreasonable burdens on interstate and foreign 

20 commerce. 

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

22 Amendment to the Constitution, of manufacturers, 

23 distributors, dealers, and importers of firearms or 

24 ammunition products, and trade associations, to 
6 

•S 397 PCS

1 speak freely, to assemble peaceably, and to petition 

2 the Government for a redress of their grievances. 

3 (6) To preserve and protect the Separation of 

4 Powers doctrine and important principles of fed5 eralism, State sovereignty and comity between sister 

6 States. 

7 (7) To exercise congressional power under art. 

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

9 the United States Constitution. 

10 SEC. 3. PROHIBITION ON BRINGING OF QUALIFIED CIVIL 

11 LIABILITY ACTIONS IN FEDERAL OR STATE 

12 COURT. 

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

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

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

16 civil liability action that is pending on the date of enact17 ment of this Act shall be immediately dismissed by the 

18 court in which the action was brought or is currently pend19 ing. 

20 SEC. 4. DEFINITIONS. 

21 In this Act: 

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

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

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

25 States Code, and, as applied to a seller of ammuni-
7 

•S 397 PCS

1 tion, means a person who devotes, time, attention, 

2 and labor to the sale of ammunition as a regular 

3 course of trade or business with the principal objec4 tive of livelihood and profit through the sale or dis5 tribution of ammunition. 

6 (2) MANUFACTURER.—The term ‘‘manufac7 turer’’ means, with respect to a qualified product, a 

8 person who is engaged in the business of manufac9 turing the product in interstate or foreign commerce 

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

11 manufacturer under chapter 44 of title 18, United 

12 States Code. 

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

14 individual, corporation, company, association, firm, 

15 partnership, society, joint stock company, or any 

16 other entity, including any governmental entity. 

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

18 product’’ means a firearm (as defined in subpara19 graph (A) or (B) of section 921(a)(3) of title 18, 

20 United States Code), including any antique firearm 

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

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

23 such title), or a component part of a firearm or am24 munition, that has been shipped or transported in 

25 interstate or foreign commerce. 
8 

•S 397 PCS

1 (5) QUALIFIED CIVIL LIABILITY ACTION.— 

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

3 civil liability action’’ means a civil action or pro4 ceeding or an administrative proceeding 

5 brought by any person against a manufacturer 

6 or seller of a qualified product, or a trade asso7 ciation, for damages, punitive damages, injunc8 tive or declaratory relief, abatement, restitution, 

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

10 from the criminal or unlawful misuse of a quali11 fied product by the person or a third party, but 

12 shall not include— 

13 (i) an action brought against a trans14 feror convicted under section 924(h) of 

15 title 18, United States Code, or a com16 parable or identical State felony law, by a 

17 party directly harmed by the conduct of 

18 which the transferee is so convicted; 

19 (ii) an action brought against a seller 

20 for negligent entrustment or negligence per 

21 se; 

22 (iii) an action in which a manufac23 turer or seller of a qualified product know24 ingly violated a State or Federal statute 

25 applicable to the sale or marketing of the 
9 

•S 397 PCS

1 product, and the violation was a proximate 

2 cause of the harm for which relief is 

3 sought, including— 

4 (I) any case in which the manu5 facturer or seller knowingly made any 

6 false entry in, or failed to make ap7 propriate entry in, any record re8 quired to be kept under Federal or 

9 State law with respect to the qualified 

10 product, or aided, abetted, or con11 spired with any person in making any 

12 false or fictitious oral or written state13 ment with respect to any fact material 

14 to the lawfulness of the sale or other 

15 disposition of a qualified product; or 

16 (II) any case in which the manu17 facturer or seller aided, abetted, or 

18 conspired with any other person to 

19 sell or otherwise dispose of a qualified 

20 product, knowing, or having reason21 able cause to believe, that the actual 

22 buyer of the qualified product was 

23 prohibited from possessing or receiv24 ing a firearm or ammunition under 
10 

•S 397 PCS

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

2 title 18, United States Code; 

3 (iv) an action for breach of contract 

4 or warranty in connection with the pur5 chase of the product; or 

6 (v) an action for death, physical inju7 ries or property damage resulting directly 

8 from a defect in design or manufacture of 

9 the product, when used as intended or in 

10 a reasonably foreseeable manner, except 

11 that where the discharge of the product 

12 was caused by a volitional act that con13 stituted a criminal offense then such act 

14 shall be considered the sole proximate 

15 cause of any resulting death, personal inju16 ries or property damage. 

17 (B) NEGLIGENT ENTRUSTMENT.—As used 

18 in subparagraph (A)(ii), the term ‘negligent en19 trustment’ means the supplying of a qualified 

20 product by a seller for use by another person 

21 when the seller knows, or reasonably should 

22 know, the person to whom the product is sup23 plied is likely to, and does, use the product in 

24 a manner involving unreasonable risk of phys25 ical injury to the person or others. 
11 

•S 397 PCS

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

8 respect to a qualified product— 

9 (A) an importer (as defined in section 

10 921(a)(9) of title 18, United States Code) who 

11 is engaged in the business as such an importer 

12 in interstate or foreign commerce and who is li13 censed to engage in business as such an im14 porter under chapter 44 of title 18, United 

15 States Code; 

16 (B) a dealer (as defined in section 

17 921(a)(11) of title 18, United States Code) who 

18 is engaged in the business as such a dealer in 

19 interstate or foreign commerce and who is li20 censed to engage in business as such a dealer 

21 under chapter 44 of title 18, United States 

22 Code; or 

23 (C) a person engaged in the business of 

24 selling ammunition (as defined in section 

25 921(a)(17)(A) of title 18, United States Code) 
12 

•S 397 PCS

1 in interstate or foreign commerce at the whole2 sale or retail level. 

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

4 the several States of the United States, the District 

5 of Columbia, the Commonwealth of Puerto Rico, the 

6 Virgin Islands, Guam, American Samoa, and the 

7 Commonwealth of the Northern Mariana Islands, 

8 and any other territory or possession of the United 

9 States, and any political subdivision of any such 

10 place. 

11 (8) TRADE ASSOCIATION.—The term ‘‘trade as12 sociation’’ means— 

13 (A) any corporation, unincorporated asso14 ciation, federation, business league, professional 

15 or business organization not organized or oper16 ated for profit and no part of the net earnings 

17 of which inures to the benefit of any private 

18 shareholder or individual; 

19 (B) that is an organization described in 

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

21 of 1986 and exempt from tax under section 

22 501(a) of such Code; and 

23 (C) 2 or more members of which are man24 ufacturers or sellers of a qualified product. 
13 

•S 397 PCS

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

2 misuse’’ means conduct that violates a statute, ordi3 nance, or regulation as it relates to the use of a 

4 qualified product. 
Calendar No. 15 

109TH CONGRESS 

1ST SESSION S. 397 

A BILL 

To prohibit civil liability actions from being brought 

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

FEBRUARY 17, 2005 

Read the second time and placed on the calendar