Thanks to Congress, gun manufacturers are shielded against lawsuits, an extraordinary gift to a single industry and a tribute to the power that the National Rifle Association has over lawmakers.
The Protection of Lawful Commerce in Arms Act (PLCAA), passed in 2005 and signed into law by President George W. Bush, insulates gun makers from any responsibility for the carnage their product causes.
“Everybody knew it was shilling for the NRA,” says Jim Kessler, who at the time was with Americans for Gun Safety. “It was a gift to the gun industry. It was like passing a bill to grant immunity to the pharmaceutical or tobacco industry. It was no better.”
To understand how this law came about, I asked Kessler to unwind its history. He set the scene. Beginning in the ’90s with the passage of the Brady Bill and then the assault weapons ban, gun manufacturers were under tremendous pressure. A spate of lawsuits from cities and municipalities including New York City, Chicago, and Boston had the gun industry on the defensive, much like the lawsuits today against pharmaceutical companies marketing opioids, a product that, like guns, starts out as legal and becomes lethal.
In the ’90s, gun manufacturers and the NRA feared the country was on the same course it had finally set for the tobacco companies. After years of litigation, cigarette makers entered into a court-ordered settlement that required them to make direct payments to states in perpetuity for the health-care costs associated with their product ($206 billion over the first 25 years).
Cigarette makers also had to market their product differently to cut down on youth smoking and make people aware of the diseases connected with smoking.
In that fraught climate, Smith & Wesson made a deal with the Clinton administration that was a preemptive strike against looming lawsuits, agreeing to make changes in how guns were marketed, add safety locks and make sure certain unscrupulous dealers wouldn’t get their product.
Starting in the Clinton administration, law enforcement had begun tracing firearms implicated in crimes. Out of some 80,000 gun stores, roughly 100 were responsible for a quarter of those guns. The new data put pressure on the gunmakers.
“Every time a gun is used in a crime, they (gun manufacturers) know about it; it’s not a secret to them,” Kessler told the Daily Beast. “We were starting to see the gun industry under the same pressure as the tobacco industry.”
The NRA and gunmakers “freaked out,” says Kessler, and drafted legislation to make gun manufacturers immune from most lawsuits and liable only if a firearm malfunctioned. The NRA spent a ton of money lobbying, and the PLCAA almost passed in 2004.
Kessler watched the vote on C-Span. “You could see senators looking at their Blackberries on the Senate floor, and (then) all but eight voted to kill it,” he says. They had got their orders from the NRA to tank the bill because gun safety advocates working with John McCain had added two amendments to the bill. One, sponsored by McCain, closed the gun-show loophole, the other, sponsored by Dianne Feinstein, extended the assault weapons ban, which after 10 years was expiring.
Once those amendments were added to the bill, the NRA withdrew its support. “That was round one,” says Kessler.
Then Bush won reelection, and the Senate was once again in Republican hands. With the support of the NRA, Republicans brought up the PLCAA again.
This time, with the Democrats in the minority, the gun safety amendments weren’t in the bill, and it easily passed the Senate and the House. Bernie Sanders was in the House at the time, getting ready to run for the Senate, and he voted for the bill.
“If you read what he said about the bill, it was the talking points of the NRA, that the gun industry shouldn’t be held responsible for people misusing their product,” says Kessler, “That’s the corporatist view.”
In the 2016 Democratic primary, Sanders took a lot of heat from Hillary Clinton for his gun vote. He promised during the campaign that he would co-sponsor legislation to repeal the immunity given the gun industry from legal liability. Since then, there have been several attempts at repeal, but without 60 votes in the Senate they have amounted to little more than press releases.
“It was as bad a bill you could have on guns, and we’re stuck with it,” says Kessler. “Overturning it is close to impossible.”
The families of the Sandy Hook victims in the 2012 massacre have been fighting since 2014 to hold Remington, the maker of the rifle used in the attack on first graders, along with distributors and sellers, responsible for marketing their product in such a dangerous way that it encourages violence. The Sandy Hook shooter used an AR-15-style Bushmaster semi-automatic rifle to kill 20 children and 6 adults.
Remington advertised the Bushmaster as “the ultimate combat weapons system,” showing the gun carried by soldiers patrolling the jungle. Another advertisement cited by the Sandy Hook plaintiffs has the slogan, “Forces of opposition, bow down. You are single-handedly outnumbered.”
In March of this year, the Sandy Hook lawsuit was allowed to proceed on procedural grounds, bringing the families one step closer to a jury trial that would confront the central question of whether the gun industry can he held liable, or remains protected by the immunity law Congress passed in 2005.
“PLCAA is a relic of a time when the gun lobby had a vice grip on Congress and were able to get anything they asked for. But frankly, it’s absurd to carve out guns from consumer safety standards,” said Chris Murphy, a Democratic senator from Connecticut.
“Victims like the Sandy Hook families deserve their day in court. That’s why I joined Senator Blumenthal in introducing legislation to get rid of this special double standard for the gun industry and allow victims the opportunity to seek justice.”