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

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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?

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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?

Rep. SCHIFF: We may well hear the same tired argument that giving victims of gun violence the same rights as every other American violates the Second Amendment, but that argument just does not hold up. Since PLCAA was passed in 2005, the Supreme Court decided in Heller that the Second Amendment does guarantee an individual right for law abiding Americans to own guns. While this decision should do away with the gun confiscation fears of the NRA, the Supreme Court has never held or even suggested that this right encompasses the further right to act negligently with guns in a way that endangers others.

As for tort reform, we're not asking for special treatment for gun victims - just the chance to make their case in court like an American injured by a BB gun or a car or any other product or inherently dangerous instrument. Moreover, civil justice is primarily an issue of state statutes and common law. If states want to pass laws limiting liability for gun companies and sellers in their state -- and in fact many have done so -- nothing in my bill stops them from doing that. It simply says that we're not going to impose a federal mandate over states who believe that civil remedies help to keep their citizens safe and are in the interest of justice.

COHEN: When I looked at the 2005 act, I was struck by how it was generally designed and supported by Tenth Amendment advocates -- lawmakers who stoutly defend states' rights -- but that it undermines the ability of state judges and state juries to hear gun negligence cases. How does your new legislation fit into the political battle over federalism?

Rep. SCHIFF: It is very strange that many of PLCAA's supporters have such an expansive view of the Tenth Amendment when it comes to issues like health care, but so constrained a view when it comes to superseding state laws protecting victims of gun violence. There is room for disagreement on the appropriate remedies for victims of gun violence, but that's a debate that should be left to each state. It was unwise of Congress in 2005 to wade into state tort laws to shield gun companies, and it remains so today.

Moreover, Congress acted without evidence that the gun industry was in need of such unprecedented immunity at the time. To the contrary, in 2005 the American Bar Association noted that proponents of PLCAA could not point to a single final court decision against a gun company to support their claim of a crisis of liability.

COHEN: You mention in your release that "numerous cases around the nation have been dismissed on the basis of" the 2005 Arms Act "even when the gun dealers acted in a fashion that would qualify as negligent if it involved any other product." Can you give some examples of these other cases?

Rep. SCHIFF: Two cases that are illustrative of the way PLCAA has protected companies from being sued for negligence are the Adames case in Illinois and the Kimcase in Alaska. In the Adames' case, a young boy was accidently shot and killed by a friend who did not realize that his father's handgun could fire a chambered round even after removing the ammunition clip. The boy's parents sued Beretta, the maker of the gun, for negligently failing to install a one dollar safety device that keeps a gun from firing without a clip inserted. Were it not for PLCAA, the case would have proceeded to a jury and we could have seen reforms in the gun industry that would prevent other accidental shooting deaths at virtually no cost. Instead, the case was dismissed.

In the second case, a gun dealer in Alaska had a man come into his store carrying a garbage bag full of clothes and exhibiting strange and troubling behavior. When the man asked to see a rifle, the gun dealer left him alone with the weapon and came back later to find the gun gone and $200, the price of the gun, left on the counter. Shortly thereafter, the buyer shot and killed an innocent bystander named Simone Young Kim. Kim's family sued the dealer for acting negligently in failing to secure his inventory and allowing the shooter, who was obviously disturbed, easy access to weapons. The district court dismissed the case, finding that PLCAA forbid the lawsuit from going forward. [Editor's note: The Atlantic's prior coverage of the Kim case can be found here. The case is currently on appeal to the Alaska Supreme Court.]

The key in both these cases is that if the product in question were anything other than a firearm, the plaintiff would be entitled to try to prove their case to a jury. They would be able to make motions for discovery of evidence relevant to their case. And ultimately whether anyone acted negligently would be decided by a jury of their peers. PLCAA denies the victims of gun violence and their families their day in court, and in doing so it protects the worst actors in the industry.

COHEN: Have you talked with executive branch officials -- at the White House or Justice Department -- about this legislation and how it might impact their own plans to address gun violence? Is the Attorney General on board?

Rep. SCHIFF: I have discussed this and other priorities with the House Task Force on Gun Violence, led by Rep. Mike Thompson and submitted this proposal to the Vice President's working group. My legislation is just one piece of the larger conversation we're having on how to reduce gun violence in this country, but it is an important piece and I look forward to gathering support and moving forward. We've already had a great response from Members and outside groups, like the Brady Campaign and the American Bar Association, who are interested in this issue.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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