The Struggle Over Gun Control in Congress Begins With These Two Men


One want to give more protections to gun manufacturers. The other would gut the 2005 law that already gives the industry unusual immunity. Who will prevail?

Representative Schiff in 2009 (Danny Moloshok/Reuters)

It all may end up funneled up to the United States Supreme Court a few years from now, a predictable result of the two recent Second Amendment rulings which gave lower courts only miserly guidance about the continuing viability of gun control laws. But, for the moment, the newly energized debate over guns is unfolding at different paces in different venues. In New York on Tuesday, exactly one month after Newtown, state lawmakers passed what the New York Times called "a sweeping package of gun control measures." Governor Andrew Cuomo signed it into law less than one hour later. Of the law, the Times said:

The expanded ban on assault weapons broadens the definition of such weapons, banning semiautomatic pistols and rifles with detachable magazines and one military-style feature, as well as semiautomatic shotguns with one military-style feature. New Yorkers who already own such guns can keep them but will be required to register them with the state.

In Colorado, meanwhile, things are moving more slowly. Instead of gathering votes and signing pens, advocates on both sides of the divide are gearing up by hiring lobbyists -- "creating opportunities," the Denver Post reported. In Aurora, the scene of the July theater shooting which left 12 dead and 58 wounded, the Post reported that the city council bravely decided to commission a committee to make city policy on guns, policies which the city council quickly reserved the right to veto. "There needs to be something," said Councilwoman Debi Hunter Holen. "Whether it's background checks, magazine bans..."

Things are moving at their own pace, too, in Washington. The national kabuki dance, which proceeded at a leisurely tempo until the Newtown shooting, has truly begun. Today, President Obama is expected to announce new gun initiatives, which the Washington Post also called sweeping:

President Obama will unveil a sweeping set of gun-control proposals at midday Wednesday, including an assault weapons ban, universal background checks and limits on the number of bullets that ammunition clips can hold, according to sources familiar with the plans.

On the other end of the spectrum, meanwhile, the old and the new have quickly coalesced to warn the nation of the consequences of such efforts.

The old is Ed Meese, Attorney General during the Reagan Administration, back for another fight; the new is a young Republican representative from Texas. They both agreed that it would be grounds for impeachment if the president were to try, in the words of one congressman, to "use executive orders and executive actions to infringe on our constitutionally-protected right to bear arms." Anyone know where Rehnquist left his yellow stripes? Oh, that's right. They are at the Smithsonian.

That congressman is named Steve Stockman, from Houston, and his contributions to the post-Newtown gun debate so far have been to endorse January 19th as "Gun Appreciation Day" and to introduce into Congress the "Safe Schools Act," a measure that would repeal what he considers to be disastrously unsafe "gun-free school zones." The purpose of Representative Stockman's legislation is clear: "to restore safety to America's schools by allowing staff, teachers, and administrators to defend the children and themselves." Little wonder, then, that the Houston Chronicle reported last Wednesday that "no one is happier that Rep. Steve Stockman is back in Washington than Gun Owners of America (GOA)."

Resolution of the federal fight over guns isn't going to be easy, in other words -- and it's sure not going to be quick. There is, however, one relatively simple way for Washington to quickly send a productive signal on guns: repeal the Bush II-era federal statute which has been broadly construed to immunize the gun industry -- dealers, manufacturers, etc. -- from liability even when they act negligently and harm others.

The Protection of Lawful Commerce in Arms Act of 2005 is a special-interest law that elevates the gun industry to a sacrosanct place in tort law: The 2nd Amendment says nothing about preventing juries from hearing gun cases.

Four weeks ago, here at The Atlantic, I suggested that the swift demise of the 2005 Arms Act would be both a symbolic and practical start to whatever reform is going to occur here. Take away the immunities of the Arms Act, and you are telling gun industry actors -- especially folks at the sales point of gun transactions -- that they will be held to the same standards of duty and care which generally govern actors under law. That they have to be more careful than they were yesterday when they are manufacturing or selling guns. And that, ultimately, the American people, in the form of juries, are going to decide if and when they are not being careful enough.

On Monday, the journey toward the end of the Arms Act took an important step. Representative Adam Schiff, a Democrat from California, announced that he will soon introduce into the House of Representatives what he's now calling The Access to Justice for Victims of Gun Violence Act. "Good gun companies don't need special protection from the law," Rep. Schiff said in his press release, "and bad companies don't deserve it." On Tuesday, via email, Rep. Schiff answered some basic questions I posed to him about his proposed measure as it relates to the 2005 law:

COHEN: Your announcement about the Access to Justice for Victims Act suggests that you want to reform, not repeal, the 2005 Arms Act. What exactly is it about the 2005 that you want to keep and how precisely would your legislation change the old law?

Rep. SCHIFF: Our bill restores the right to bring actions against negligent manufacturers and dealers, while not subjecting the gun industry to any greater level of liability than any other industry for the independent actions of others.

COHEN: The gun lobby -- and conservatives in Congress -- are likely to challenge this measure both as an infringement upon 2nd Amendment rights and as a step backward from what they like to call "tort reform." What's your response to that? How are you going to counter the "tort reform" (read: anti-business) argument you are going to hear?

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

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