Hillary Clinton has recently criticized fellow presidential candidate Senator Bernie Sanders’ record on gun control. One component of this record is Sanders’ vote for the Protection of Lawful Commerce in Arms Act in 2005. Clinton argues that this Act shields gun manufacturers and sellers from any legal liability for civil wrongs. Her arguments on this issue are not supported with evidence and are unconvincing.
As Politifact notes, Hillary Clinton said, “Probably one of the most egregious, wrong pieces of legislation that ever passed the Congress when it comes to this issue is to protect gun sellers and gun makers from liability. They are the only business in America that is wholly protected from any kind of liability. They can sell a gun to someone they know they shouldn’t, and they won’t be sued. There will be no consequences.” Politifact correctly rated this statement as “false.” Her website’s Issues section reads, “Hillary believes the gun industry must be held accountable for violence perpetrated with their guns. Hillary will lead the charge to repeal the so-called ‘Protection of Lawful Commerce in Arms Act,’ a dangerous law that prevents victims of gun violence from holding negligent manufacturers and dealers accountable for violence perpetrated with their guns.” These arguments are almost entirely untrue.
Clinton claims that gun manufacturers and sellers are protected from “any kind of liability” and cannot be held liable for negligence under the Act. The text of the Act clearly disproves these claims. The Act prohibits parties from bringing “qualified civil liability action[s]” in State and Federal courts, but provides several exceptions from its definition of “qualified civil liability action.” Gun manufacturers and sellers may be sued for violations of State and Federal laws if such violation was a proximate cause of the plaintiff’s harm. They may be sued for false records or the failure to keep records required by law. They may be sued for selling a firearm to a person prohibited from possessing a firearm. They may be sued for breach of contract. They may be sued for a defect in design or manufacture that results in death, physical injury, or property damage. They may be sued for “negligent entrustment or negligence per se,” in which “negligent entrustment” is defined as “the supplying of a qualified product 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.”
Given this list of exceptions to the prohibited civil actions, it is clear that the Protection of Lawful Commerce in Arms Act does not immunize gun manufacturers and sellers from “any kind of liability” as Hillary Clinton claims. Furthermore, the exception for negligent entrustment demonstrates that the Act also does not prevent “victims of gun violence from holding negligent manufacturers and dealers accountable.” One must conclude that either Hillary Clinton is ignorant of the substance of the Act (despite sitting in the Senate when it was considered and voting on it) or she is not bothered by proclaiming information she knows to be false. Unfortunately, the latter appears more likely. Hillary Clinton is a knowledgeable and intelligent woman. She is likely aware that her talking points will be popular among her Democratic supporters regardless of their veracity.
Another element of Hillary Clinton’s arguments that is troubling is her assertion that “the gun industry must be held accountable for violence perpetrated with their guns.” If she means they must be held accountable for violence resulting from their negligence, the negligent entrustment exception discussed above permits civil actions in this circumstance. If, however, Clinton is advocating gun manufacturers and sellers be held liable for any harm resulting from a criminal misuse of their products that is deeply alarming. In that case, gun manufacturers could follow the law, exercise appropriate and reasonable care and still be held liable for the criminal actions of a third party. To find liability in this case would violate fundamental principles of fairness and introduce a dangerous precedent into American tort law. Clinton’s words are capable of such a broad construction, but it is hoped that she is advocating for liability in cases of negligence. This is already permitted under the Protection of Lawful Commerce in Arms Act, despite her unfounded assertions to the contrary.
Brian McCarty is a staff columnist for The Daily Campus opinion section. He can be reached via email at firstname.lastname@example.org.