Bernie Sanders' Ongoing Argument With Himself About Gun Violence Liability

He has turned against the Protection of Lawful Commerce in Arms Act but talks like he still supports it.



During last night's Democratic presidential debate, as Brian Doherty noted, Bernie Sanders seemed to express sympathy for a lawsuit that seeks damages from the manufacturer, distributor, and dealer who supplied the rifle used in the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut. That represents an apparent reversal from the position Sanders took at another debate just last month, when he explicitly and persistently criticized the very same lawsuit.

Last night, after Hillary Clinton faulted Sanders for saying the families of the Sandy Hook victims "didn't deserve their day in court" (her paraphrase), he responded, "They are in court today, and actually they won a preliminary decision today. They have the right to sue, and I support them and anyone else who wants the right to sue."

Last month, by contrast, Sanders said this:

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.

Those comments, along with similar statements Sanders made in interviews with Rolling Stone last December and the New York Daily News on April 1, are consistent with his vote for the Protection of Lawful Commerce in Arms Act, which 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." Sanders has taken a lot of heat from Clinton and other gun controllers for that vote, and he is now cosponsoring a bill that would repeal the law. Yet it seems clear that he still believes in the principle it embodies.

Witness this exchange from the Daily News interview, which is what Clinton was talking about when she criticized Sanders' stance last night:

Daily NewsThere's a case currently waiting to be ruled on in Connecticut. The victims of the Sandy Hook massacre are looking to have the right to sue for damages the manufacturers of the weapons. Do you think that that is something that should be expanded?

Sanders: Do I think the victims of a crime with a gun should be able to sue the manufacturer, is that your question?

Daily NewsCorrect.

Sanders: No, I don't.

That seems plainly inconsistent with what he said last night. Sanders might respond that "they have the right to sue" even under current law, which is true, although the Sandy Hook plaintiffs have resorted to a very broad, highly implausible interpretation of "negligent entrustment," one of the liability theories that the Protection of Lawful Commerce in Arms Act allows (along with lawsuits based on product defects and illegal actions by gun suppliers). The usual understanding of negligent entrustment would cover a dealer who, say, sold a gun to someone he had reason to know was bent on violence, or to someone who was obviously buying the gun for a third party who was legally disqualified from owning firearms. By contrast, the Sandy Hook plaintiffs, who include the families of nine people murdered at the school, plus a survivor of the massacre, argue that the defendants are guilty of negligent entrustment because they made a gun with no legitimate civilian uses available to the general public.

Not only is that definition of negligent entrustment absurdly broad; it is based on a plainly false premise, since the sort of rifle used in the massacre is very popular among law-abiding people and is rarely used to commit crimes. Maybe Sanders nevertheless agrees with the theory behind the Sandy Hook lawsuit, which is arguably consistent with his support for a federal "assault weapon" ban. But I doubt it. From everything he has said about the issue, it is apparent that he still rebels at the notion that law-abiding, non-negligent manufacturers and dealers should be held responsible for the crimes committed by a tiny percentage of their customers. The same logic, after all, would apply to handguns, which mass murderers use more frequently than so-called assault weapons.

It is hard to see Sanders' decision to support repealing the Protection of Lawful Commerce in Arms Act as anything other than an insincere, politically convenient conversion. Although the law is questionable on federalist grounds (since it dictates the liability rules applied by state courts), I have never heard him make that argument. It would be surprising if he did, since he (like Clinton) has a very broad view of the federal government's authority and has never, as far as I know, shown much interest in the 10th Amendment.