During last night's Democratic presidential debate in Flint, Michigan, Hillary Clinton once again criticized Bernie Sanders for supporting the Protection of Lawful Commerce in Arms Act, a 2005 law that she falsely claimed gave gun manufacturers and dealers "absolute immunity" against lawsuits. Clinton, who as a senator voted against that law, has brought up Sanders' vote for it during six out of seven debates so far, misrepresenting what the law says almost every time. Sanders has responded defensively, saying he would take another look at the law to see if it can be improved. But last night he made it clear that he supports the basic principle embodied in the law, which is that manufacturers and dealers generally should not be held responsible for criminal misuse of the guns they supply.
Moderator Anderson Cooper asked Sanders about a lawsuit against the manufacturer, distributor, and retailer of the rifle used in the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. Here is Sanders' reply:
If you go to a gun store and you legally purchase a gun, and then, three days later, if you go out and start killing people, is the point of this lawsuit to hold the gun shop owner or the manufacturer of that gun liable?
If that is the point, I have to tell you I disagree. I disagree because you hold people—in terms of this liability thing, where you hold manufacturers' [liable] is if they understand that they're selling guns into an area that—it's getting into the hands of criminals, of course they should be held liable.
But if they are selling a product to a person who buys it legally, what you're really talking about is ending gun manufacturing in America. I don't agree with that….
As I understand it…what people are saying is that if somebody who is crazy or a criminal or a horrible person goes around shooting people, the manufacturer of that gun should be held liable….
If that is the case, then essentially your position is there should not be any guns in America, period.
That is basically what the plaintiffs in the Newtown massacre lawsuit are saying, but they dress up their argument in terms designed to get around the limits imposed by the Protection of Lawful Commerce in Arms Act. That law bans lawsuits based on "the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended." But it allows tort claims based on "negligent entrustment"—i.e., "the supplying of [firearms] by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others." The Newtown plaintiffs, who include the families of nine people murdered at Sandy Hook, plus a survivor of the massacre, maintain that the defendants are guilty of negligent entrustment because they made a gun with no legitimate civilian uses available to the general public.
That argument is implausible, to say the least, since AR-15-style guns like the one used in Newtown are very popular and plainly do have legitimate civilian uses. Yet Sanders, who favors a federal ban on so-called assault weapons, seems to believe otherwise. Last night he said, "I don't think it's a great idea in this country to be selling military-style assault weapons which are designed to kill people." That does not necessarily mean Sanders would support this lawsuit, since the gun at the center of it was legal at the time even in Connecticut. The plaintiffs are trying to stretch negligent entrustment to cover entirely lawful actions by a large segment of the gun industry. Even Dennis Henigan, former director of the Legal Action Project at the Brady Center to Prevent Gun Violence, concedes they are unlikely to succeed.
That does not mean the lawsuits allowed by the Protection of Lawful Commerce in Arms Act, which can be based on product defects or illegal actions as well as negligent entrustment, are doomed to fail. Last fall a Wisconsin jury awarded $5.1 million in damages to two police officers who were gravely injured by a handgun that Badger Arms, a store near Milwaukee, sold to a straw buyer. The jurors concluded that the store clerk who sold the gun ignored obvious clues that the ostensible buyer was not the real buyer, who was 18 and therefore not legally permitted to purchase a pistol from a federally licensed dealer. The jurors faulted the store's owners for failing to properly train their employees.
As that example shows, it is still possible to hold gun makers and dealers liable for negligence. Clinton wants to do more than that, arguing that litigation can "force gun makers to do more to make guns safer." She is referring to "smart guns" that are more expensive, harder to use, and less reliable than standard firearms. The only way litigation would encourage the sale of such guns is by making manufacturers liable for producing the firearms their customers actually want. When such lawsuits were filed "in the late '90s and in the early 2000s," Clinton said last night, "the NRA saw this happening, and they said, 'We've got to stop it. Last thing in the world we want is to have guns that you can only shoot with your fingerprint, or to have guns with such strong safety locks on them that they may not be sellable.'" But as far as Clinton is concerned, unsellable guns would be a victory.
I remain unconvinced that the law Clinton faults Sanders for supporting was necessary or appropriate. There is a credible argument that Congress acted to protect Second Amendment rights against litigation that ultimately could have made them difficult or impossible to exercise. That is the argument to which Sanders alluded when he said lawsuits blaming gun makers for gun crimes, if successful, could mean "ending gun manufacturing in America." In 2005, however, that threat remained distant and theoretical, since the lawsuits had been almost uniformly unsuccessful and had prompted legislative responses at the state level. Furthermore, there were legitimate constitutional concerns about interfering with state tort law. But no matter which side you took in that debate, Clinton is clearly wrong to suggest that the Protection of Lawful Commerce in Arms Act gave the gun industry complete immunity against lawsuits, and Sanders is clearly right that manufacturers, distributors, and dealers should not be held liable for crimes committed with their products unless they deliberately or negligently foster those crimes.