One Quick Answer to Sandy Hook? Repeal the 2005 Arms Act

A recent federal law shields the gun industry from liability for negligence. Its demise would be a good step forward after the Connecticut shooting tragedy.

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Family members and victims of mass shootings at a rally staged by the Brady Campaign to Prevent Gun Violence in Washington, D.C., on December 18. (Joshua Roberts/Reuters)

On Sunday, while Republican lawmakers were refusing to go on the morning talk shows, Democratic Senator Dianne Feinstein of California said that she would re-introduce federal legislation to ban assault weapons. On Monday, while National Rifle Association spokesmen remained in hiding, New Jersey Democratic Senator Frank Lautenberg announced that he would reintroduce a "high-capacity magazine ban." These bills likely will be among the first gun measures the new Senate will consider when it reconvenes in January, Senate Majority Leader Harry Reid said Monday.

"In the coming days and weeks," Sen. Reid said, "we'll engage in a meaningful conversation and thoughtful debate about how to change laws and culture that allow violence to continue to grow." I don't know how "thoughtful" that conversation is likely to be -- Americans tend to become hysterical when it comes to guns -- but former Supreme Court Justice John Paul Stevens said in October that the court's landmark gun ruling in District of Columbia v. Heller, is no impediment to a federal ban on automatic weapons.

So while Congress begins to contemplate these measures -- while we all engage in another bitter and divisive round of political theater over how far other forms of gun regulation ought to go in the wake of the Sandy Hook school shooting; while the scope of the Supreme Court's Second Amendment jurisprudence is evaluated anew -- let me now suggest a relatively quick way in which our federal lawmakers can send a productive message about gun violence: Congress could repeal the Protection of Lawful Commerce in Arms Act.

The Bush-era legislation immunizes gun manufacturers and gun dealers from civil liability for crimes committed with their weapons. It gives the gun industry a powerful legal defense that most other industries do not enjoy, and it creates disincentives about gun safety at the point of sale. The law strips the American people -- in this case jurors -- of the ability to render justice: to decide in court whether there are sufficient facts in negligence cases to hold gun makers and sellers financially responsible for the loss of life or limb caused by their goods.

The Arms Act does not touch upon the core of the Second Amendment's newly recognized individual right. Nor would it have had an impact upon the Connecticut shooting -- no one alleges that alarms should have been raised when the shooter's mother purchased the arsenal of weapons her son later used to gun down school administrators and all those children. But it's nevertheless a law which declares that gun transactions are somehow so necessary that the people who carry them out warrant special protection under law. This is patently absurd.

The Arms Act

The Arms Act was passed in 2005, in the depths of the Bush era, and today it remains one of the most jarring parts of a relentless conservative campaign to impose "tort reform" upon America. It shields gun-industry actors who may not have done all they can do to ensure that guns stay out of the hands of people who shouldn't have them. And it does so in the name of the hoary concept that freedom of gun commerce is more important per se than freedom from gun violence. Think that's an equation the American people embrace today?

Here below are some of the Congressional "findings" which accompany the law. The language is telling -- and downright dire in its condemnation of the rule of law and centuries-long role of judges and juries in our civil justice system. In the name of shielding potentially negligent gun dealers, Congress quickly threw under the bus virtually every legal precept Americans have treasured for the past 225 years. According to the law, having a jury of American citizens pass judgment on the negligent acts of a gun dealer weakens the very fabric of our society:

5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

This is all nonsense. The world didn't end when negligent gun sellers and manufacturers were required by state law to pay for their negligence, and it wouldn't end now if Congress were to repeal this legislation. The Arms Act elevated commercial transactions in the gun industry to near-sacrosanct stature, signalling to industry actors that they will have immunity even if they sell a gun to an obviously crazy or dangerous person. That's been a bad message to send since 2005. Today, in the wake of this year's gun violence, it's also politically untenable.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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